Please note: absentjustice.com is a work in progress: last edited June 2020
It is important to advise newcomers to absentjustice.com that various exhibits are linked in the text: for example, FrontPage Part One File No/1, Main Evidence File No/3 or Prologue Evidence File 1-A to 1-C. Clicking on these links with your cursor will automatically open a PDF of the exhibit. By using this method and following the various file nos discussed in our various pages (see menu bar above you will be able to verify our story. Without those documents, most people would really struggle to believe that the Casualties of Telstra (COT for short) claimants have actually lived through these appalling events.
Until the late 1990s, the Australian government fully owned Australia’s telephone network and the communications carrier, Telecom (today privatised and called Telstra). Telecom held the monopoly on communications and let the network deteriorate into disrepair. When four small business owners had severe communication problems, they went into arbitration with Telstra. The arbitrations were a sham: the government not only allowed Telstra to minimise the Casualty of Telstra (COT) members’ claims and losses, but the government also bowed down to Telstra and let the carrier run the arbitrations. Telstra committed serious crimes during the arbitrations yet, up to this day, the Australian government and the Australian Federal Police have been unable to hold Telstra, or the other entities that were involved in this deceit, accountable. Why is Telstra above the law? Read on to discover how this corruption and injustice unfolded.
But our story is about more than just government bureaucratic corruption. It’s also about the right to a fair hearing, which belongs to every citizen living in a democratic country (which Australia purports to be). Reading our page An injustice to the remaining 16 Australian citizens will show you, I hope, that just two decades ago our government allowed five citizens to access their previously concealed arbitration documents, but disallowed the remaining 16 citizens that same right, even though they were on a Senate schedule list to have their document issues assessed in the same manner as the litmus five COT cases. This action by the John Howard government is possibly the worst case of discrimination against 16 Australians since federation.
My name is Alan Smith. This is the story of a group of ordinary small-business people fighting one of the largest and most unscrupulous corporations in the country. The story of how for years Telstra (in the earlier days called Telecom) refused to address the many phone problems that were affecting the capacity of Four small business owners to run their businesses, telling them ‘No fault found,’ when the governments own investigations (see below) show otherwise. We call ourselves the Casualties of Telstra (COT for short).
Before reading our Casualties of Telstra story, we suggest you click on the following legal research paper https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2817646 where you will find there are others, not just the COT cases, who see loopholes in the justice given out by some of the Telecommunication Industry Ombudsman staff. In many cases, these ombudsmen have not even been lawyers and yet the Australian Establishment gives them the right to decide legal issues, which have – in many cases, as our story shows – ruined the lives of so many Australians.
The COT arbitration issue is extraordinarily complex. This means that, as we set up this website, we found that the only option we had was to separate the various stories under different headings see menu bar above. As the website grew, we also discovered that some of the issues related to more than one event and, in fact, were sometimes linked to multiple events and that meant that the one event needed to be repeated in a number of different sections of the website, so that the depth of the corruption and the illegal activities that were committed during and after our arbitrations could be fully and properly understood. By the commencement of our four arbitrations in April 1994, another twelve had joined the group.
On 26 September 1997, after most of the arbitrations were concluded, the second appointed administrator to the COT arbitrations, John Pinnock, officially advised the government (see page 99 COMMONWEALTH OF AUSTRALIA – Parliament of Australia) that:
“In the process leading up to the development of the arbitration procedures—and I was not a party to that, but I know enough about it to be able to say this—the claimants were told clearly that documents were to be made available to them under the FOI Act.”
“Firstly, and perhaps most significantly, the arbitrator had no control over that process, because it was a process conducted entirely outside the ambit of the arbitration procedures.”
Why were the arbitrations not conducted under the agreed ambit of the arbitration procedures? How can arbitration be a just process when the arbitrator has no control over how it is conducted? When did Dr Hughes lose control over the arbitrations? Was it the first week, or two months or even nine months into the process? And, just as importantly, who authorised him to conduct the process entirely outside of the ambit of the arbitration procedures? Where are these hidden arbitration related Telstra documents that we COT Cases were told we would receive if we entered our government endorsed arbitrations? Why hasn’t the government acted upon this official advice given by John Pinnock?
This link on > Kangaroo court – Wikipedia says a kangaroo court is often held to give the appearance of a fair and just trial, even though the verdict has, in reality, already been decided before the trial begins. This could be because of the biases of the decision-maker, or because the structure and operation of the forum result in an inferior adjudication. A common example of this is when institutional disputants (‘repeat players’) have excessive and unfair structural advantages over individual disputants (‘one-shot players’).
Wikipedia’s definition of a kangaroo court explains precisely what happened in the Casualties of Telstra (COT) arbitrations. If you are ever told that the COT cases’ arbitration issues are covered by confidentiality clauses in the arbitration agreements, and so should therefore not be discussed publicly, this is a total fabrication to stop interested parties from investigating our claims. Note: the arbitrator and TIO colluded with the defendants so that the draft of the arbitration agreement (drawn up by Telstra’s lawyers) was used as the final version of the agreement for all the arbitrations, instead of independently crafted agreements, as had been formally agreed to by all parties. This Telstra-designed agreement provided numerous benefits for the defence to the serious detriment for the claimants.
Further to this collusive behaviour, the arbitrator and TIO also held secret meetings with the defendants, without notifying the claimants, before the confidentiality agreement was signed. Therefore, none of these deceptive acts are covered by the confidentiality agreement. The arbitration agreement which the confidentiality clause was attached to allows only for the arbitrator to conduct those four arbitrations under the agreed ambit of the Arbitration Act (1984). Senate Hansard, dated 26 September 1997, confirms our arbitrations were conducted entirely outside the ambit of the Arbitration Act. The TIO and government cannot hide behind this confidentiality agreement: once the arbitration process was not conducted under the ambit of the Arbitration Act 1984, the confidentiality clause in the agreement was invalidated.
The briefcase affair
Government communications regulatory documents confirm I uncovered sensitive documents left in a Telstra briefcase at my premises. These documents show Telstra knew how severe my telephone problems were, but refused to investigate these complaints unless I first registered them in writing with their lawyers, Freehill Hollingdale & Page. This continual writing up of individual and ongoing telephone faults, to these lawyers, in order to have Telstra investigate them almost, sent me insane. Instead of keeping this evidence, I was providing it to Telstra and copying the same to AUSTEL, believing this would assist them in locating the problems I was experiencing. I was unaware I would later need this evidence for an arbitration process set up by AUSTEL, the then government communications regulator. This arbitration process meant I had to retrieve back, from Telstra and AUSTEL under Freedom of Information, the very same documentation I had previously provided them. Imagine the frustration of knowing that you had provided the evidence supporting your case but it was now being withheld from you. If this wasn’t soul-destroying enough, imagine learning that lawyer Denise McBurnie, who you were being forced to register your phone complaints with, devised a legal paper titled “COT Case Strategy” (see Prologue Evidence File 1-A to 1-C. instructing their client Telstra on how to conceal those registered phone complaints under the guise of Legal Professional Privilege (see immediately below).
Starting on page 5163, this link > SENATE official Hansard – Parliament of Australia dated 25 June 1997, shows Telstra employees rorted millions upon millions of dollars from Telstra shareholders: i.e., the government and Australian citizens, who then owned Telstra. The pressure Senators Alston and Boswell applied, for a Senate investigation into the Casualties of Telstra phone fiascos, was one of the reasons Telstra agreed to settle the COT cases’ issues in a proposed Fast Track Settlement Proposal, signed by Telstra and the four claimants in the third week of November 1993. Telstra, it seemed, could not afford a further investigation into its operation: New South Wales was not the only state where this rorting, among others, was taking place. The fact that both the Telstra CEO and all the board members had known, for some time, that millions upon millions of dollars were being unlawfully siphoned from the government coffers is astounding. In fact, figures running into the billions have also been quoted.
It was important to include Senate page 5163 SENATE official Hansard here because along with the “COT Case Strategy” it shows systemic criminal conduct was within the Telstra Corporation while the COT arbitrations were proceeding as well as showing that the corruption was certainly real and not a figment of our imaginations.
Page 5169 in this SENATE official Hansard confirms a number of senators discuss a legal firm and its strategy advising how Telstra can conceal technical information from the four COT cases under Legal Professional Privilege, even though the documents were not privileged. The COT strategy is available at download Prologue Evidence File No/1. The named author of this COT strategy, FOI folio N00750 dated 20 September 1993, is the same lawyer who I was forced to register each of my phone complaints with, in writing, before Telstra would respond. NONE of the fault information I provided to this lawyer, concerning ongoing telephone problems and Telstra’s response to those problems, were ever released to me during my arbitration.
Folio N00750, shows this lawyer named me and my business as one of the COT cases who were to be targeted.
The Senate never contacted me concerning this very damning disclosure, even though I could have used this very important evidence to mount an appeal against my arbitration process considering this COT strategy shows Telstra’s lawyers unlawfully targeting us four COT cases even before we went into arbitration with Telstra. This legal firm went onto defend Telstra in all four arbitrations.
Worse, however, the day before the Senate committee uncovered this COT Case Strategy, they also told under oath, on 24 June 1997, by ex-Telstra technician-turned-whistleblower, Lindsay White, that during the time he was assessing the COT cases’ technical information (see pages 36 and 38 of Senate – Parliament of Australia), he was told by Telstra representatives in the office of Feehill’s (the same legal firm who drafted the COT Case Strategy) that us four COT cases, and another COT, had to be “stopped at all cost” from proving our cases.
It is clear from Mr White’s statement he identified me as one of the five COT claimants that Telstra advised him ‘stopped at all costs’ from proving my claim.
The government continues to advise interested parties that the COT issues cannot be investigated because of the confidentiality clause they signed in their individual arbitration agreements. This advice is misleading and deceptive. Firstly, as mentioned in page 5169 in the above Senate Hansard, the government is aware the first four COT cases were targeted by Telstra’s lawyers before the arbitrations commenced. Telstra’s lawyers spuriously advising Telstra how to conceal technical documents from those four claimants under Legal Professional Privilege, even though the documents were not privileged, is a good example of where the gag clauses cannot be used to stop an investigation into those four claims. Secondly, both the government and claimants were advised the arbitration agreement for the first four arbitrations was totally drafted by the Telecommunications Industry Ombudsman’s lawyers when it was really drafted by these same lawyers who previously drafted the COT Case Strategy (see exhibit 48-B attached to Open Letter File No/48-A to 48-D). It is clear from the Freehill’s Logo at the bottom left-hand side of the pages of this draft agreement that it was faxed to the TIO office on 10 January 1994.
How can a democratic, legally conducted arbitration process conceal this type of deceptive conduct, when it commenced five MONTHS before the four COT cases signed their arbitration confidentiality agreements?
A group of small-business operators (the COTs) on one side of a fight against Telstra’s bottomless purse on the other, was really no contest, even though the COTs had right on their side because Telstra had access to the public purse, which they had been stealing from for many, many years. In order to win the battle, the COTs needed a strong assessor/arbitrator who would demand that this thieving and skulduggery be properly investigated and fully addressed before the arbitrations even began. If such a person had been appointed – someone with ethics and a spine strong enough to stand up to the power of Telstra and demand that an investigation be completed before any arbitration commenced – then the four COT Cases would all have gone through a transparent process.
Faxes missing in the network
The statements in the COT Cases fax interception report prepared by Scandrett Associates Pty Ltd renowned telecommunications consultants and countersigned by another telecommunications expert Peter Hancock (see Open Letter File No/12 and File No/13, shows that a secondary fax machine was intercepting COT Cases faxes during their arbitrations. One of the two technical consultants attesting to the validity of those findings in that January 1999 report wrote to me on 17 December 2014 stating:
“I still stand by my statutory declaration that I was able to identify that the incoming faxes provided to me for review had at some stage been received by a secondary fax machine and then retransmitted, this was done by identifying the dual time stamps on the faxes provided.” (See Hacking-Julian Assange File No/53)
It is clear from Front Page Part One File No/1, File No/2-A to 2-E, File No/3, File No/4 and Front Page Part One File No/5, that numerous documents faxed from my office to the arbitrators’ office did not reach their intended destination.
And why did it seem everyone was protecting Telstra, turning a blind eye to what was unlawful behaviour? Tampering with evidence in the arbitration is unlawful (see Tampering With Evidence). Relying on defence documents which are known to be flawed, in arbitration, is unlawful (see Telstra’s Falsified SVT Report. and Telstra’s Falsified BCI Report. Interception of telephone conversations and hacking into claimants arbitration-related documents is unlawful. Someone within Telstra must have authorised this criminal conduct. The TIO, and Austel often enough, refused to act; Members of Parliament when in Opposition were happy to provide support for the COT cause, but as soon as the government was theirs, that support vanished. No-one was prepared to make Telstra accountable. It was enough to make the most level-headed person suspect conspiracies.
The depths to which Telstra stooped in its conduct with the COT claimants seems to suggest just how little confidence Telstra had in its own case. But why was it so fearful of being found liable? What was the worst that could happen if our claims were vindicated? What was it trying to conceal?
Telstra used its position as one of Australia’s largest companies to cover up the truth surrounding our arbitration claims. The Summary of events page shows how blatantly obvious it is that senior management in Telstra’s arbitration unit was clearly happy to pressure their own technicians into producing witness statements that those technicians were then obliged to sign, under oath, even though those statements were false even though the Government’s own investigations into the same claims had already revealed a situation that was totally different to those sworn statements.
Why, in my own case was I forced to undergo this long and costly legalistic arbitration process when the government comunications regulator AUSTEL (now called ACMA) had already conducted their own investigation into my complaints and found my claims validated as the following points: 10, 17, 18, 23, 37, 39, 40, 42, 44,46,47, 53, 56, 61, 62, 70, 75, 76, 79, 86, 87, 89, 91, 92, 93, 98, 100, 101, 104, 105, 109, 110, 111, 112, 118, 115, 129, 130, 136, 144, 151, 153, 158, 170, 173, 186, 187, 188, 206, 207, 208, 209, 210, 211 and 212 in AUSTEL’s Adverse Findings shows.
‘David and Goliath’
Our story is a true ‘David and Goliath’ story of twenty-one small-business operators in Australia who dared to stand up against a nation-wide telecommunications corporation that was then still owned by the Australian Government. And let us begin with what is possibly the most important part of what may eventually become a major shock to the government and their political mercenaries who have favoured Telstra to the detriment of the COT Cases and their families. This part of the COT story begins with many, many statements that have been made, over many, many years, by many, many Australian Senators who were involved with our arbitration story, even before the arbitrations began, comments that then continued throughout the five years while those arbitrations dragged on, and then continued for many years after they had all been declared to have been properly concluded. I have deliberately used the words ‘possibly the most important part’ here because many of the statements made by those Senators, all of them recorded here on absentjustice.com, highlighted the unethical way all our arbitrations were conducted. The problem now is that the Government that originally endorsed these very same arbitrations and mediation processes at the very beginning still continues to refuse to have all of those processes reassessed. Yes, even though elected Senators raised these important issues with those in power generally, as well as those in power through the Government here in Australia, and even though they raised those issue many times over, still the Government has done exactly nothing to ensure that all of the twenty-one COT Cases which a Senate Committee investigated between September 1997 and March 1999) receive the same justice, as the five ‘litmus test’ cases received (see An injustice to the remaining 16 Australian citizens).
I suppose, looking back, and with the information I now have (if only I had that information before my arbitration began!) it was rather ridiculous for me, an ex-merchant navy cook and a small-business operator, to expect justice to come from a Government that, since the conclusion of my arbitration, has now awarded an Order of Australia to both Warwick Smith and Dr Gordon Hughes. In fact, a simple online search of those two names will reveal why their ‘explanations’ regarding the validity of the events that the COTs claimed had occurred before, during and after their arbitrations, will show you why anyone in power in Australia still believes Warwick Smith and Gordon Hughes, but the COTs are denied any presumption of truth. Another thing you need to remember here is that no-one, not for one moment, is trying to devalue just how legally smart these two lawyers are because their CVs speak for themselves. What is just as true though is that, as soon as they both realized just how unethically Telstra was behaving towards the COT claimants during our arbitration and mediation processes (something that should have been blatantly obvious to two such highly educated lawyers), they should have both immediately agreed that the COT arbitration/ mediation processes were being mismanaged at the very least, if not deliberately undermined and devalued.
We also know that John Rundell, the officially appointed Arbitration Project Manager, wrote to Warwick Smith on 18 April 1995 and copied that letter to both Dr Hughes (the Arbitrator) and Peter Bartlett (the Telecommunication Industry Ombudsman’s Special Counsel), as you can confirm at Prologue/Chapter One). Mr Rundell’s letter clearly acknowledged that: “It is unfortunate that there have been forces at work collectively beyond our reasonable control that have delayed us in undertaking our work.” (see Prologue Evidence File No 22-A). Perhaps even worse, Mr Rundell was also prepared to deceive the COT claimants too, on page two of his letter, where he commented, in relation to who really assessed the technical issues we claimants had raised in our claims, that: “Any technical report prepared in draft by Lanes …” [an Australia technical consultancy appointed to our arbitration process by Warwick Smith] “… will be signed off and appear on the letterhead of DMR Inc. Paul Howell anticipates completing the Smith [me] technical report by the end of April”.
It is important to now explain that the first four COT claimants had, by then, refused to accept any involvement from Lanes because their consultants had originally been employed by the telecommunications company that the COTs were up against, and this was clearly Mr Rundell’s way of overcoming that obstacle, even though that was surely a decidedly dishonest solution to their problem. As shown elsewhere on absentjustice.com, Warwick Smith wrote to those first four COT Cases promising us that, if we accepted Lanes anyway, then Paul Howell of DMR Inc. (Canada) would become the Principal technical consultant. Certainly, in my case, Lanes covertly researched and reported on ALL of the 23 individual technical findings in the formal report, a fact that Warwick Smith and Dr Hughes both know full well. In simple terms, as the first claimant to go through this appalling process, I was profoundly misled and deliberately deceived in relation to who really calculated the value of my claim. In fact, when Paul Howell finally did manage to get to Australia to meet with Dr Hughes, his findings were still incomplete and he admitted that he still needed ‘extra weeks’ to assess my claim (see Prologue/Chapter One). That advice, however, was removed from Paul Howell’s draft before it was submitted, by Dr Hughes, as the final technical report.
The word of this person has been accepted over mine, regardless of strong evidence proving my claims are valid. His misconduct, during and after my arbitration (see also Prologue/Chapters Two and Three, was heavily detrimental to my case and a deplorable act. Why should he get away with what he has, these past two decades or more, just because he is highly regarded as an arbitrator? How many other arbitrations has Mr Rundell been involved in where he has been prepared to change who the real author of a report was because that author was not supposed to have been the principal consultant in charge of preparing the report? That action was misleading – deception of the worst possible kind.
Section 52 of the Australian Trade Practices Act 1974 (Cth), in contrast with most obfuscatory legislative drafting, is simplicity itself. The Section says that: A corporation shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive. Section 52 has no criminal sanction.
Why have at least four Telecommunication Industry Ombudsman, as well as a number of TIO Board and Council members who were made aware of the validity of my claims, have not transparently investigated my claims and my arbitration forensic accountant Derek Ryan’s claims (See Open letter File No/45-E) made against John Rundell’s conduct during and after my arbitration? It appears as though the following google link https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2817646 is also questioning the authority of the TIO office when acting as a legal resolution umpire.
Meanwhile, however, the collusion between Warwick Smith and Gordon Hughes did not stop with the concealment of this 18 April 1995 letter from John Rundell because, together, they jointly withheld an equally disturbing letter dated 12 May 1995 (the day after Dr Hughes handed down his findings on my claim). This letter from Dr Hughes (see Open Letter File No 55-A) is condemning the arbitration agreement (the rules) he had just used for my case as ‘not a credible document to have used’, even though he HAD used anyway.
As a legal claimant in this matter, I was entitled to know about both of these important letters, along with many other deficiencies that revealed themselves as the arbitrations progressed. The fact that both Warwick Smith and Gordon Hughes deliberately withheld this information from us COT Cases, was based on a seriously inappropriate decision that simply added to the trauma that we COT claimants were already struggling with. If either of these two letters of 18 April and 12 May 1995 had actually been released to me during my designated appeal period, of course, I would have used them in that appeal and then, how on earth could any appeal judge decide NOT to assess them as vital evidence?
To add further insult to these injustices, on 12 September 1994, as part of the arbitration process, I was obliged to meet with Telstra’s consulting forensic psychologist in Portland’s Richmond Hotel, so he could analyse my mental health as part of Telstra’s arbitration defence. One of the most important issues I raised with him was the trauma I suffered at the hands of the legal firm that hired him. He appeared to listen carefully to what I described and said being directed to register every phone complaint, in writing, with Telstra’s lawyer Denise McBurnie, before they would be investigated, was most disturbing. This was the same lawyer (the author) who drafted the COT Case Strategy (see Prologue Evidence File 1-A to 1-B). I provided the forensic psychologist confirmation that losing six incoming calls in a single day was common. Writing to a lawyer, daily, explaining lost calls, was more than just soul-destroying, it just about broke my will power to carry on. He said he was shocked Telstra and its legal firm forced this on me and agreed this would certainly affect my mental state over the many months this continued.
However, when Telstra’s lawyers, whom the government assured us would not be used in our arbitrations, provided this clinical psychologist’s witness statement to the arbitrator, it was only signed by Freehill Hollingdale & Page. It did not bear the signature of the psychologist nor contain his concerns regarding me having to first contact this legal firm, in writing, before Telstra would investigate my ongoing telephone problems.
The most alarming points about this unsigned witness statement are:
- Before the psychologist met with me, Telstra’s lawyers provided him with a copy of the Cape Bridgewater Bell Canada International (BCI) addendum report stating 13,590 test calls were carried out, over a five-day period, into the Cape Bridgewater RCM exchange, using the TEKELEC CCS7 monitoring equipment. This report stated the test calls had a 99 per cent success rate.
- Neither the psychologist nor the arbitrator was these type of told tests calls through the Cape Bridgewater RCM unmanned switching exchange was impracticable: the nearest exchange that could accommodate the TELELEC CCS7 equipment was the Warrnambool exchange, 120 kilometres from Cape Bridgewater (see Telstra’s Falsified BCI Report)
Had the psychologist known the 13,590 tests calls, allegedly carried out by BCI, could not terminate through the TEKELEC CCS7 monitoring system at Cape Bridgewater, his assessment of my mental state would have been somewhat different. He, too, might have been distressed if he was aware Telstra misled and deceived him prior to him assessing my state of mind.
On 21 March 1997 (twenty-two months) after the conclusion of my arbitration Mr Pinnock, the second appointed administrator to my arbitration wrote to Telstra’s arbitration defence consultant Mr Benjamin stating:
I would appreciate your advice concerning the matters raised by Mr Smith, in particular and arising out of your letter of 23 December 1994 to Dr Hughes:
- any explanation for the apparent discrepancy in the attestation of the witness statements of Ian Joblin
- were there any changes made to the Ian Joblin statement originally sent to Dr Hughes, compared to the signed statement?
- the nature of the queries by Ferrier Hodgson [the arbitration resource unit]
- Are you aware whether the Ferrier Hodgson letter was sent to Mr Smith (See Exhibt AS 596 file AS-CAV 589 to 647
The matter concerning why Telstra allowed their lawyers Freehill Hollingdale & Page to sign a statutory declaration without the witness being present was not addressed by Dr Hughes or Warwick Smith (the first administrator to my arbitration) during my arbitration.
More importantly, did someone other than Mr Joblin [the clinical psychologist] change the original assessment (of my mental state) after Mr Joblin had signed and submitted the report? Was this why Mr Joblin’s witness statement was forwarded to Dr Hughes without Mr Joblin’s signature? Why hasn’t Freehill Hollingdale & Page been made to explain their position regarding why only their signature was on this witness statement prepared by Mr Ian Joblin?
In the same Senate Hansard, dated 24 June 1997 (mentioned above), in which Lindsay White says he was told to “stop these people at all costs”, similar injustices against COT case Sandra Wolfe was experienced during her Mediation Process. These injustices included her having a warrant executed against her by Telstra employees under the Queensland Mental Health Act (see pages 82 to 88, Introduction File No/9). Had Sandra not acted in the manner she did, it is possible she could have been lost in an institution for the insane.
Addressing Telstra regarding this alarming situation bestowed upon yet another Australian citizen who also advised the government she had constantly received threats from Telstra prior to and during her mediation process, Senator Schacht says:
“No, when the warrant was issued and the names of these employees were on it, you are telling us that it was coincidental that they were Telstra employees.” (p87)
Is this warrant issued under the Queensland Mental Health Act, against Sandra Wolfe, akin to the false information provided by Telstra to the clinical psychologist before he assessed my mental health? In my case, the consultation by this psychologist was not conducted in a private surrounding, but in the Richmond Henty Hotel’s saloon bar! Are the threats that Sandra Wolfe advised the government about connected to the threats that I received during my arbitration from Telstra’s arbitration advisor Paul Rumble?
In question 58 in the attached AFP transcripts of their interview with me on 26 September 1994 during their investigation into Telstra’s unauthorised interception of my telephone conversations (see Australian Federal Police Investigation File No/1) they also raised the issues surrounding Paul Rumble’s threats.
During the COT arbitrations, rumours suggested Telstra’s senior management was using the Queensland Mental Health Act to gag COT cases and to quash our claims that the arbitrator Dr Hughes and Warwick Smith (the administrator) were ignoring Telstra’s threatening of us and that this was severely hindering the preparation of our individual claims. During this period, Senator Ron Boswell raised these same threats with Telstra’s legal directorate in the Senate on 29 November 1994, (see page 180 ERC&A):
“Why did Telecom advise the Commonwealth Ombudsman that Telecom withheld FOI documents from Alan Smith because Alan Smith provided Telecom FOI documents to the Australian Federal Police during their investigation?”
After receiving a hollow response from Telstra, which the senator, the AFP and I all knew was utterly false, the senator states:
“…Why would Telecom withhold vital documents from the AFP? Also, why would Telecom penalise COT members for providing documents to the AFP which substantiate that Telecom had conducted unauthorised interceptions of COT members’ communications and subsequently dealt in the intercepted information by providing that information to Telecom’s external legal advisers and others?” (See Senate Evidence File No 31)
What is so appalling about this withholding of relevant documents is that no one in the TIO office or government has ever investigated the disastrous impact this had on my overall submission to the arbitrator.
It is blatantly obvious The Establishment, which controlled the COT arbitrations process, also denied me my rights as an ordinary citizen – an equal before the law – and ultimately deprived me the right of having justice run its due course. The arbitrator and the government (who, remember, at the time fully owned Telstra) should have initiated an investigation into why an Australian citizen, who assisted the AFP in their investigations into unlawful interception of telephone conversations, was disadvantaged during a civil arbitration process.
20 September 1995, under the heading A MATTER OF PUBLIC INTEREST. This official Senate record shows a very emotional senator discussing the injustices that we four COT claimants (i.e., Ann Garms, Maureen Gillan, Graham Schorer and I) suffered prior, during and after our so-called government-endorsed arbitrations:
“Eleven years after their first complaints to Telstra, where are they now? They are acknowledged as the motivators of Telecom’s customer complaint reforms. … But, as individuals, they have been beaten both emotionally and financially through an 11-year battle with Telstra. …
“Then followed the Federal Police investigation into Telecom’s monitoring of COT case services. The Federal Police also found there was a prima facie case to institute proceedings against Telecom but the DPP [Director of Public Prosecutions], in a terse advice, recommended against proceeding. …
“Once again, the only relief COT members received was to become the catalyst for Telecom to introduce a revised privacy and protection policy. Despite the strong evidence against Telecom, they still received no justice at all. …
“These COT members have been forced to go to the Commonwealth Ombudsman to force Telecom to comply with the law. Not only were they being denied all necessary documents to mount their case against Telecom, causing much delay, but they were denied access to documents that could have influenced them when negotiating the arbitration rules, and even in whether to enter arbitration at all. …
“This is an arbitration process not only far exceeding the four-month period, but one which has become so legalistic that it has forced members to borrow hundreds of thousands just to take part in it. It has become a process far beyond the one represented when they agreed to enter into it, and one which professionals involved in the arbitration agree can never deliver as intended and never give them justice.”
“I regard it as a grave matter that a government instrumentality like Telstra can give assurances to Senate leaders that it will fast track a process and then turn it into an expensive legalistic process making a farce of the promise given to COT members and the unducement to go into arbitration.
“Telecom has treated the Parliament with contempt. No government monopoly should be allowed to trample over the rights of individual Australians, such as has happened here.” (See Senate Hansard Evidence File No-1).
On the 27 January 1999, after reading my manuscript (not yet published) which refers to what all of us COT Cases had to endure during and after our arbitrations Senator Kim Carr stated:
“I continue to maintain a strong interest in your case along with those of your fellow ‘Casualties of Telstra’. The appalling manner in which you have been treated by Telstra is in itself reason to pursue the issues, but also confirms my strongly held belief in the need for Telstra to remain firmly in public ownership and subject to public and parliamentary scrutiny and accountability.
“Your manuscript demonstrates quite clearly how Telstra has been prepared to infringe upon the civil liberties of Australian citizens in a manner that is most disturbing and unacceptable” (See Arbitrator Evidence File No 66)
Senator Kim Carr again criticised the handling of the COT arbitrations on 11 March 1999 as the following Hansard link shows. Addressing the government’s lack of power, Senator Carr stated:
“What I do make a comment on is the question of civil liberties and the rights of citizens to approach this parliament and seek redress for their grievances when corporate power, particularly in a publicly owned corporation, has been abused. And there can be no question that that is what is at the heart of this issue.”
And addressing Telstra’s conduct, he stated:
“But we also know, in the way in which telephone lines were tapped, in the way in which there have been various abuses of this parliament by Telstra—and misleading and deceptive conduct to this parliament itself, similar to the way they have treated citizens—that there has of course been quite a deliberate campaign within Telstra management to undermine attempts to resolve this question in a reasonable way. We have now seen $24 million of moneys being used to crush these people. It has gone on long enough, and simply we cannot allow it to continue. The attempt made last year, in terms of the annual report, when Telstra erroneously suggested that these matters—the CoT cases—had been settled demonstrates that this process of deceptive conduct has continued for far too long.” (See > http://parlinfo.aph.gov.au/parlInfo/chamberhansards1999-03-11)
The Senate Hansard of 11 March 1999 includes quotes confirming just how scathingly critical a number of Senators were in relation to the way Telstra ran the COT arbitrations, and not the arbitrator Dr Hughes even going so far as to note that it was “a process subject to unilateral amendment by Telstra”. That the committee was able to state Telstra used their “unilateral” control of the arbitration process to avoid supplying the promised documents shows the arbitration process failed the COT cases.
Senator Schacht also was possibly more vocal when he stated:
“I rise to speak to this statement tabled today from the working party of the Senate Environment Communications, Information Technology and the Arts Legislation Committee—a committee I served on in the last parliament—that dealt with the bulk of this issue of the CoT cases. In my time in this parliament, I have never seen a more sorry episode involving a public instrumentality and the way it treated citizens in Australia. I agree with all the strong points made by my colleagues on both sides who have spoken before me on this debate. What was interesting about the Senate committee investigating this matter over the last couple of years was that it was absolutely tripartisan—whether you were Labor, Liberal or National Party, we all agreed that something was rotten inside Telstra in the way it handled the so-called CoT cases for so long. The outcome here today is sad. There is no victory for citizens who have been harshly dealt with by Telstra.”.http://parlinfo.aph.gov.au/parlInfochamberhansards1999-03-11)
Senator Mark Bishop’s statement shown below also notes
Significant issues do arise. I think it is appropriate to refer to the final paragraphs of the committee report. In the second to last paragraph, the report of the committee tabled by Senator Eggleston says:
Estimates of Telstra’s costs in relation to the CoTs issue since the claims were made exceed $20 million ($14.285 million to 1997 and rising). Most of the expenditure has been spent, not on settlement but on administrative and legal costs. It became quite clear early in the process that the claimants had in fact been disadvantaged by malfunctions in their telephone system. It is difficult to understand why Telstra appeared to prefer to deny that there was a problem and then prolonged the difficulties in establishing the extent of that problem.
The final sentence reads:
In the Committee’s view, Telstra should now seek to reach a negotiated agreement with the interested parties.
If fault is to be allocated at this very early stage of the final lap, that fault lies at the door of Telstra. It really is appropriate for Telstra, a $100 billion corporation, to stop using its monopoly power, to stop retaining the services of dozens of highly paid solicitors and to come to the table and to seek to reach a negotiated agreement with these four or five persons. It is simply outrageous that Telstra, which is still a public corporation, can spend something in the order of $20 million – Senator Boswell – Some $24 million.
“I am informed by Senator Boswell it is 24 million – defending a claim when the claim before it is somewhere between $2 million or $4 million. This is simply an outrageous proposition and a waste of public money” (See aph.gov.au/parlInfo/search/displaychamberhansards1999-03-11
On 23 March 1999, the Australian Financial Review (Australian newspaper) reported on the conclusion of the Senate estimates committee hearing into why Telstra withheld so many documents from the COT cases:
“A Senate working party delivered a damning report into the COT dispute. The report focussed on the difficulties encountered by COT members as they sought to obtain documents from Telstra. The report found Telstra had deliberately withheld important network documents and/or provided them too late and forced members to proceed with arbitration without the necessary information,” Senator Eggleston said. “They [Telstra] have defied the Senate working party. Their conduct is to act as a law unto themselves.”
Senator Len Harris, who won his senate seat on 2 July 1999 for the One Nation party, then lived in Queensland, 2,977 kilometres from Melbourne. On 25 July 2002, Senator Len Harris travelled from Cairns in Queensland (a trip that took more than seven hours) to meet four other COTs and me, in Melbourne, in an attempt to ensure our claims of discrimination against the Commonwealth were fully investigated. He was appalled that 16 Australian citizens were so badly discriminated against in such a deplorable fashion by the then-Coalition government, despite a Senate estimates committee working party being established to investigate all 21 COT-type claims against Telstra.
He was stunned at how I had collated this evidence into a bound submission. When Senator Harris read the 9 August 2001 letter from Senator Alan Eggleston Liberal Party warning me that if I disclosed the in-camera Hansard records (which supported my claims that sixteen Australian citizens had been discriminated against in the most deplorable manner) I would be held in contempt of the Senate and risk jail, he Senator Harris, was very upset, to say the least.
At a press conference the next day, Senator Harris aimed questions at the chief of staff to the Hon Senator Richard Alston, Minister for Communications. He asked:
“Through the following questions, the media event will address serious issues related to Telstra’s unlawful withholding of documents from claimants, during litigation.
- Why didn’t the present government correctly address Telstra’s serious and unlawful conduct of withholding discovery and/or Freedom of Information (FOI) documents before the T2 float?
- Why has the Federal government allowed five Australians (from a list of twenty-one) to be granted access to some of the Telstra discovery documents they needed to support their claims against Telstra, but denied the same rights to the other sixteen?
- Why has the Federal Government ignored clear evidence that Telstra withheld many documents from a claimant during litigation?
- Why has the Federal Government ignored evidence that, among those documents Telstra did supply, many were altered or delivered with sections illegally blanked out? (See Senate Evidence File No 56 ).
Senator Len Harris is possibly one of the finest men I have ever had the pleasure of meeting, a true man that believes in justice for all, not just those with political clout. The senator could not understand how, despite various senators from both houses of parliament openly condemning Telstra’s unethical conduct towards those five litmus test COT claimants during their arbitrations and the Senate investigation itself, the other 16 were left to their own devices. The in-camera Senate Hansard records indicate that no one seemed to grasp the importance of Senator Schacht’s advice to the committee that, if Telstra only provided compensation to the five litmus COT cases it would be an injustice to the remaining 16.
A fair resolution of those sixteen COT cases has never been resolved as can be seen by clicking onto An injustice to the remaining 16 Australian citizens. By the time I finish recording all the details of our complex story here, at absentjustice.com, there will be many, many people, from all walks of life, who will then believe that it is absentjustice.com that tells the actual, true story, the only one that should be believed.
Have you ever had reason to complain about your phone bill?
Has a friend insisted he has rung and you had not answered, even though you know you were right beside the phone at the time?
Has anyone expressed amazement at how much time you spend on the phone or prospective clients rebuked you for being unprofessional and not answering your phone, when you know it hasn’t rung for days and you’ve hardly made any outgoing calls?
If you have experienced even one of these situations then you will understand why I sometimes feel I have lived through a nightmare. I experienced all these problems and more for almost ten years. I am still seeking an equitable resolution of them.
The saga began in late 1987 when my wife Faye and I bought a small accommodation business perched high above Cape Bridgewater, near Portland on the south-west coast in country Victoria. ‘Seal Cove’ had been run as a school camp, and we intended to turn it into a venue for social clubs and family groups as well as schools.
The camp was a decidedly phone-dependent concern — being 20 kilometre from the township of Portland, phone was the preferred access to us for city people — and our big mistake when we fell in love with the place was to fail to look into the telephone system. In fact, the business was connected to a phone exchange installed more than 30 years before and designed specifically for ‘low-call-rate’ areas. This antiquated and unstaffed telephone exchange had only 8 lines and was never intended to handle the volume of calls made by a larger population plus holiday makers when Faye and I took over the business.
In blissful ignorance, we went ahead with the sale of our home in Melbourne and I took early retirement benefits to raise the money to invest in what we expected to be a new and exciting venture.
I knew this was a business I could run successfully. From the age of fifteen when I went to sea as a steward on English passenger/cargo ships, I had worked in areas that prepared me for the hospitality trade. In 1963 I jumped ship in Melbourne to work as an assistant chef in one elite hotel after another, then two years later, aged twenty, I joined the Australian Merchant Navy. By 1975, I had been a chef on many Australian and overseas cargo ships and now returned to land.
Faye and I had married in Melbourne in 1969, and I worked freelance in the catering industry and on tugboats while I studied for a hotel/motel management diploma. I had already taken on the management of one hotel/motel and pulled it out of receivership so that it was running successfully again. By 1987, at the age of 44, I had enough experience behind me to be confident that I had the skills and knowledge to turn a simple school camp into a successful multifaceted concern.
I made personal visits to almost 150 schools and shires to extol the virtues of the camp, and in February 1988, had some 2000 colour brochures printed and distributed. Then we waited for the phone to ring with inquiries. In vain. There was not even a modest 1% inquiry rate as a result of this marketing exercise.
By April we were beginning to realise the problem might lie with the telephone service. People were asking why we never answered our phone, or were suggesting we install an answering machine to take calls when we were away from the office. In fact, we had an answering machine, but even after we installed a new one, the complaints continued, coupled now with comments about long periods when the phone was giving the engaged signal.
As time went on, call ‘drop-outs’ added to our problems, when the line just went dead in the middle of a call. If the caller hadn’t yet given us contact information, and didn’t ring back, we lost that contact. Between 19 April 1988 and 10 January 1989, Telstra logged nine separate complaints from me about the phone service and several letters of complaint. A typical response to my 1100 call was a promise to check the line. On rare occasions, a technician was actually sent out, whose response was inevitably ‘No fault found’ while my problems continued unabated.
Eventually we discovered that the previous owner of the business had endured the same problems, and had complained equally unsuccessfully about them. In 1988, when I was beginning to marshal my case against Telstra, I obtained a number of documents through the Freedom of Information Act (FOI). According to a document headed ‘Telstra Confidential: Difficult Network Faults — PCM Multiplex Report’, with a sub-heading ‘5.5 Portland —Cape Bridgewater Holiday Camp’, Telstra was aware of the faults in early 1987.
Harry, our next-door neighbour, sympathised; his daughter, ringing from Colac, often complained about how difficult it was to get through to her parents. Another local (name deleted ) and once the owner of a grocery chain, suffered from similar problems to ours for many years. He commiserated, saying, ‘But what can you expect from Telstra when we’re in the bush?’ Well, I expected better than this. And certainly we were promised better than this.
We encouraged people to write, but the telephone culture was endemic. People wanted an immediate response. As bookings dwindled instead of increasing, I began to feel I hadn’t properly researched the pros and cons before moving to Cape Bridgewater and was beginning to question what I had done asking Faye to agree to selling the family home just so I could satisfy my ambition to run my own business. It was not the fun I had anticipated. I was operating in a state of constant anger, a very unamusing Basil Fawlty.
We went touring South Australia to sell the concept of our camp through the Wimmera area, but responses were few. Was it the phone to blame? How could we be sure? The uncertainty itself added to the stress.
Sometimes the culprit was blindingly obvious. On a shopping expedition to Portland, 20 kilometres away, I discovered I had left the meat order list behind. From a public phone box I phoned home, only to get a recorded message telling me the number was not connected!
I phoned again, to hear the same message. Telstra’s fault centre said they would look into the matter and so I went about the rest of the shopping, leaving the meat order to last. Finally I phoned the camp again, and this time the phone was engaged. I decided to buy what I could remember from the list and hope for the best, but was not surprised when I got home to learn the phone had not rung once while I had been out.
Anyone who uses a telephone has at some time reached a recorded voice announcement (known within the industry as RVA):
‘The number you have called is not connected or has been changed. Please check the number before calling again. You have not been charged for this call.’
This incorrect message was the RVA people most frequently reached when trying to ring the Camp. While Telstra never acknowledged this, I discovered much later, among a multitude of FOI documents I received in 1994, a copy of a Telstra internal memo which explained, ‘this message tends to give the caller the impression that the business they are calling has ceased trading, and they should try another trader’ Home Home Page Part One File No 11-A
Another Telstra document referred to the need for:
‘a very basic review of all our RVA messages and how they are applied …I am sure when we start to scratch around we will find a host of network circumstances where inappropriate RVAs are going to line’ Home Page Part One File No 11-B
It seems the ‘not connected’ RVA came on whenever the lines in or out of Cape Bridgewater were congested, which, given how few lines there were, was often.
For a newly established business like ours, this was a major disaster, but despite the memo’s acknowledgement that such serious faults existed, Telstra never admitted the existence of a fault in those first years. And with my continued complaints I was treated increasingly as a nuisance caller. This was rural Australia, and I was supposed to put up with a poor phone service — not that anyone in Telstra was admitting that it was poor service. In every case, ‘No fault found’ was the finding by technicians and linesmen.
The frustration was immense, coupled with uncertainty. Were our problems no more than general poor rural service compounded by the congestion on too few lines going into an antiquated exchange? The camp was, at that stage, the only accommodation business being run in Cape Bridgewater. Obviously we relied on the phone more than most people in the area. But if there was some specific fault, why weren’t they finding it?
The business was in trouble, and so were we. By mid 1989 we were reduced to selling some shares for our operating costs. Here we were, a mere 15 months after taking over the business and we were actually beginning to sell off our assets instead of reducing the mortgage. I felt like a total failure. We were neither of us able to lift the other’s spirits.
I decided to do another round of marketing in the city. I would give it all I had. We both went. Was it masochism that made me ring the camp answering machine, via its remote access facility, to check for any messages, so I could respond to them promptly? Whatever it was, all I could get was the recorded message:
‘The number you are calling is not connected or has been changed. Please check the number before calling again. You have not been charged for this call.’
On the way home, just outside of Geelong, we stopped at a phone box and I tried again. Now the line was engaged. Perhaps somebody was leaving a message, I thought. Ever hopeful.
There were no messages on the answering machine. And nothing to be gained by asking why had I received an engaged signal. How many calls had we lost during the days that we were away? How many prospective clients had given up trying to get through because a recorded message told them the phone was not connected? Anger and frustration were very close to the surface. This wonderful beachside location and nobody could telephone us to make a booking, oh how sad all this was looking.
Near the end of October 1989, our twenty-year marriage ended. I had already been taking prescribed drugs for stress; that afternoon I added a quantity of Scotch and hunkered down in one of the cabins. Faye, understandably, was seriously concerned and called the local police who broke into the cabin to ‘save’ me from myself. They took me to the hospital and I am forever grateful to the doctors who confirmed that I wasn’t going ‘nuts’ and who sent me home the following day. My friends Margaret and Jack from Melbourne decided that Margaret would come home with me to ‘bail me out’. The fun, however, had just begun.
Margaret and I arrived back at the camp to be confronted with a disaster area. Faye had left the night before, following advice from various people that she needed to be in a ‘safe house’. Doors had been left unlocked, meat from the deep freeze was left out on benches, and various items had mysteriously vanished. And, according to the Camp diary, 70 students from Monivae Catholic College in Hamilton were due to arrive in two days, booked in for five days and four nights. Without Margaret’s assistance, I would have been wiped out.
Mourning the end of my marriage, the very thought of shopping was a mountain I didn’t want to climb. What to feed 70 students plus staff? By the time I got my head around what to order it was Sunday evening and the Monivae group were due the following day. Then the hot water service broke down!
The staff was not happy about cold showers! Even so, for the next five years, Monivae College returned two and sometimes three times a year. Their support throughout this awful period helped me keep trading.
And of course Margaret’s support. She carried so much through that first week. Aware that I was holding on by my fingernails, she suggested Brother Greg, one of the Monivae teachers, come to the house to talk to me. It was an inspired suggestion, and we talked well into the night, Margaret too, working through many things, from early childhood experiences to the end of twenty years of marriage.
In the weeks that followed my phone problems continued unabated. I began keeping a log of phone faults, recording all complaints I received in an exercise book, along with names and contact details for each complaint and a note regarding the effect these failed calls were having on both the business and on me.
One day the phone extension in the kiosk was dead. The coin-operated gold phone in the dining room, which was on a separate line, had a normal dial tone, so I dialed my office number, only to hear the dreaded:
‘The number you have called is not connected or has been changed. Please check the number before calling again. You have not been charged for this call.’
In fact I was charged for the call because the phone did not return my coins! Five minutes later I tried again. This time the office phone appeared to be engaged (it wasn’t) and the gold phone happily regurgitated my coins.
I used this testing routine frequently over the next months, and registered every fault I found with Telstra. The situation was beginning to tell on me. Why was this still happening after so many complaints? Could Telstra really be this incompetent? Or was there something worse going on? Had I made too much of a nuisance of myself? But that was ridiculous. Under the circumstances I had behaved impeccably politely … when in fact I had fantasies of sheer violence at times.
Now I was no longer one half of a working husband and wife team, I started 1990 digging into my pitifully low financial reserves to pay staff, or risk losing everything. I was suffering what is commonly known in the world of finance as a ‘consequential resultant loss’ — Faye was no longer contributing her unpaid labour, and I now had to pay her a yearly dividend on her financial investment in the business.
The future looked grim. There had been no attempt by Telstra to remedy the faults, or at least no attempt that made any difference. The constant refrain of ‘No fault found’ was wearing very thin. I found it hard not to dwell on how many prospective customers night be lost because they couldn’t reach me by phone. Nor was it long before the legal vultures were circling. I hadn’t been able to meet my financial agreement with Faye and her solicitor was demanding money. I was having trouble meeting my own legal costs, let alone finding any extra. My son’s school fees were overdue and in order to pay some of the mounting debts, I sold the 22-seater school bus I had originally used to ferry customers around, and purchased a small utility in its place.
On the positive side, I had met a woman called Karen, who lived in Warrnambool. Our relationship developed to become quite serious, and when Karen knew I was about to wind up my business because I couldn’t raise the funds to make any more payments to Faye, she put her house up as security for a loan, thereby giving me two years breathing space. She believed in me, and she believed in the capacity of the Camp to succeed. She wanted to be a partner in it. This was early in 1991.
Things were starting to look up, especially when I discovered that a new exchange was to be installed at Cape Bridgewater later in the year, which would alleviate all the problems of congested lines. It was just a question of time. Karen moved in with me and we worked together with new energy to pull the business out of the doldrums.
In August that year came another joy when I got the first confirmation from someone within Telstra that they knew my phone problems were real. They had found an old document suggesting I had been right all along. I felt such a relief that the faults were at last being acknowledged and I asked for the name of my new friend. I was so happy, I didn’t even really register any perturbation when all he could tell me was that he worked at the fault centre in Hamilton. No names.
According to Telstra’s own file note:
‘Alan Smith rang 15/8/91 re service 267 267. Incoming callers are receiving engaged signal when it’s not engaged …
This has been a continuing problem and he is losing a lot of business.
I said it appears from the fault history that the problem may be in the exchange and that the next RCM exchange 21/8 would solve these problems but that I would check this out with the techs.
I also said we would have a look at the service now to try and get it working correctly until cutover’Home Page Part One File No 11-C
At last someone in Telstra had given me something to hang on to. When Karen sold her house, a part of the proceeds went towards paying my legal fees and my debt to Faye. I paid Faye out and Karen’s name was now officially on the title to the business. We counted the days to the installation of the new exchange.
But the triumph of a new exchange when it came at the end of August 1991 was the briefest of victories. It made not the slightest difference. The telephone problems continued just as before, now exacerbated by the dreadful disappointment that the war wasn’t over at all. Increasingly, people reported complaints of recorded voice announcements, and I continued to complain to Telstra about faults which seemed to me to be getting worse, not better. I asked technicians, if a new exchange didn’t correct the problems, then where could the faults lie? Their response was unbelievable: ‘No fault found.’ They simply refused to engage with my question. I cursed the fact that I had no contact details for the one person who had acknowledged that there were faults. (I did not see the file note he wrote until 1995.)
New bookings continued to be rare. The camp was getting in need of painting and upgrading. The business looked sad and bedraggled, and so people who passed by were not interested in stopping. And when we did have a booking, cash flow was a problem, making it tricky to put food on the table. We somehow always managed, but it was very stressful. Karen was starting to see her investment going down the drain, and the strain on her came to a head while we were in the middle of organising a charity camp for under-privileged children.
Despite the financial precariousness of the enterprise, I had from the start sponsored the stays of under-privileged groups at the camp. It was no loss to me really: sponsored food was provided through the generosity of a number of commercial food outlets, and it cost me only a small amount in electricity and gas.
In May 1992 we held a charity week for kids from Ballarat and South West Victoria, organised largely by Sister Maureen Burke, IBVM, Principal of Loreto College in Ballarat. Arrangements regarding food, transport, and any special needs the children might have, had to be handled over the phone, and of course, Sister Burke had enormous problems making phone contact, Calls were either ringing out or she was getting a dead line — no sound at all. Finally, after trying in vain all through one week, she decided to drive the 3½ hours to make the final arrangements.
Just as she arrived at the camp, Karen was taking a phone call from a very angry man who wanted information about a singles weekend we were trying to set up. This caller was quite abusive. He couldn’t understand why we were advertising a business but never answered the phone. Karen burst into tears. She had reached the end of her tolerance, and nothing I could say was any help. When Sister Burke appeared in the office I decided absence was the better part of valour and removed myself, leaving the two women together. Much later, Sister Burke came out and told me she thought it probably best for both of us if Karen were to leave Cape Bridgewater. I felt numb. It was all happening again.
But it wasn’t the same as it had been with Faye. Karen and I sat and talked. True, we would separate, but I assured her that she would lose nothing because of her generosity to me; that I would do whatever was necessary to buy her out. We were both relieved at that. Karen rented a house in Portland and we remained good friends, though without her day-to-day assistance at the camp, which had given me space to travel around, I had to drop my promotional tours.
Later I sent Sister Burke an early draft of this book. She wrote back, ‘Only I know from personal experience that your story is true, otherwise I would find it difficult to believe.
Casualties of Telstra
In July 1992 Karen rang to tell me she had heard of a restaurant in Melbourne suffering the same phone problems that were crippling me.
I felt a great comfort in hearing this, and knew I needed to meet the owner. Making phone contact with the restaurant was of course difficult, but eventually, I got through to Sheila Hawkins, proprietor of The Society restaurant in Bourke Street, in the centre of the city. We arranged to meet and I travelled to Melbourne in early August.
It was so good to talk to someone who experienced similar problems. And there were more of us. Sheila knew of an Ann Garms who ran the Tivoli Theatre Restaurant in Brisbane, who was also having serious telephone problems. Back in Cape Bridgewater I rang Ann to discover she was coming to Melbourne the following week to register her own complaints with Austel, the Australian Telecommunications Regulator, and we arranged to meet together with Sheila. I went into the city again for the meeting, where Ann mentioned another Brisbane business that was in similar trouble — a car parts company run by Maureen Gillen. Like Ann’s business, Maureen’s was trunked off the Fortitude Valley exchange. Sheila, meanwhile, had contacted Graham Schorer who somehow ran the Golden Courier Service out of North Melbourne — despite a very bad phone service.
Finally, our little group gathered together at Sheila’s restaurant in Bourke Street, except for Maureen who couldn’t make the journey from Brisbane. It was Sheila who suggested we call ourselves COT — Casualties of Telstra. This was one of her last actions with the group as she withdrew shortly after due to ill-health.
At the top of the list of problems we held in common were those three little words: ‘No fault found.’ It wasn’t just that we all had to put up with ongoing service faults, Telstra’s evasion of responsibility in this regard made those faults a nightmare. Telstra had a duty to deliver us service up to a recognised network standard, and by failing to ‘find’ their faults they were effectively avoiding carrying out their statutory obligation.
In October 1992 COT had its first official meeting with Telstra, at the Ibis Hotel in Melbourne. We were a united and optimistic group of small-business telephone users, on our way down the path to justice. We had no idea what a long haul we were in for. Indeed, this first meeting felt eminently successful. Telstra sent three executives; they treated us courteously and we felt that our claims were being taken seriously. We were seen, and treated, as a concerned group of small-business people who had been consistently ignored by Telstra. We asked for Austel (the government regulator) to be the ‘honest broker’ in our matters, and the executives agreed to this. They took the documentary evidence we had brought, and at the end of the meeting we were left with a sense that it was all soon to be resolved.
After that initial meeting, there were a number of meetings with Telstra and Austel. Based as he was in the city, Graham Schorer was the COT representative. Under pressure from Austel, Telstra was acknowledging that faults existed, though they still held back from admitting the scale of faults we knew to be true — and indeed, as it turned out, that they too knew to be true.
Guaranteed up to network standard
Meanwhile, in July 1992 I had been obliged to ask Telstra for a guarantee that my phone service was up to standard. A bus service wanted such a guarantee (in case of urgent needs for communication) before it would contract to bring groups to the camp. Although I did not see how Telstra could guarantee such a thing on the basis of current performance, I thought a guarantee might have some use as leverage.
Not one but two guarantees eventually arrived (in the event, both too late for the purpose of securing the contract with the bus company). The first stated that my phone service was indeed ‘up to network standard’:
‘Whilst our recent tests indicate that your service is now performing to normal network standards, I am initiating a further detailed study of all the elements of your service and the tests which have been conducted’Home Page Part One File No 11-D
The second stated:
‘We believe that the quality of your service can be guaranteed and although it would be impossible to suggest that there would never be a service problem we could see no reason why this should be a factor in your business endeavours’ Home Page Part One File No 11-E .
Now I need to jump ahead of myself here, to draw on material I did not have access to at this time, but which reveals something of what was going on in the telephone exchange while my business was sinking.
In 1994 we COT members all ended up involved in arbitrations with Telstra. According to the rules of arbitration, Telstra had a legal obligation to provide us with relevant documents under the Freedom of Information Act. You will hear a lot more about this in due course, not least about the unreasonable time it took for FOI document requests to be delivered (often years too late); enough to say here, that in an FOI release in mid-1994 I received documents referring to the general congestion problem at Cape Bridgewater.
The second paragraph of a document titled ‘Subject PORTLAND – CAPE BRIDGEWATER PCM HBER’ of 12 July 1991, was of particular interest:
‘When the ‘A’ direction of system 2 was initially tested, 11,000 errors per hour were measured. In the ‘B’ direction, approximately 216 errors per hour were measured, 72 errors per hour is the specified number allowable(see Main Evidence File No 31)
This level of error was in fact known at least as early as February 1990, the very time my complaints were being stonewalled. And nor was it acknowledged to me at the time of writing (July 1991). And in the new exchange, the problems continued, as another document, titled ‘Portland — Cape Bridgewater — RCM System’ showed, referring to information logged in March 1993, long after Telstra had first reported these massive error rates Home Page Part One File No 11 F
|Initial error counter readings, Portland to Cape Bridgewater direction:|
|System 1||System 2||System 3|
|At this stage we had no idea over what period of time these errors had accumulated.|
The second page of this document explains why they ‘had no idea over what period of time these errors had accumulated’:
‘The alarm system on all three RCM systems had not been programmed. This would have prevented any local alarms being extended back to Portland’.
They didn’t know how long these errors had been accumulating because, from 18 August 1991, when the new exchange (RCM) was installed at Cape Bridgewater, the fault alarm system had been left unconnected. Since this was an un-manned exchange, no-one could know when faults occurred — except, of course, us poor, defenceless customers.
This means that in September 1992 when Telstra management had written to me stating that the quality of my telephone service was guaranteed as up to network standard, they had failed to realise that this alarm had not been connected. Even the local telephone technicians were oblivious to the call loss due to the unconnected alarm system in the exchange. What kind of investigation into the faults I had reported over several years does this demonstrate? A farcical one. How, for several years, could they fail to notice that the alarm wasn’t connected?
This was not a two a hundred miles from anywhere it was a tourist hamlet on a major tourist road with the finest bay in the whole of Victoria Australia. So what was wrong? Why didn’t the phones work?
A compensation deal
The formation of COT had come not a moment too soon for me. The frustration of struggling with problems that seemed immune to complaints, and about which I could do nothing but complain, could finally be shared. I had lost faith in my own judgement by this time; I had let down two different partners who had trusted me, and I was now borrowing from friends just to keep the camp running on a day to day basis. Through all of this, of course, the phone faults implacably continued.
The COT group continued to negotiate with Austel and Telstra, and in late 1992 our combined pressure finally produced results: Telstra approached me with a proposal for a compensation payout which included a confidentiality agreement to the effect that I would not disclose the value of any settlement which resulted from this. I signed this agreement on 11 December 1992 and I have honoured my word not to disclose the amount of the payout without prior approval by Telstra.
That same day, I went to Telstra’s city fault centre where the area general manager and I began a long discussion regarding the extent of my financial losses over the four and a half years since I first complained about the phones. This manager and I were the only people involved in this discussion. I provided her with copies of numerous letters I had received from clients and tradespeople, describing their experiences trying to ring me, and I explained how I had calculated the sum of my losses.
On a number of occasions, the manager left me alone to examine documents she had given me. As she left on the first occasion, she explained that she would close the door so I could read in private and added that, if I needed to discuss anything with my advisors I was free to use the telephone: there was a direct outside line available at all times so I wouldn’t need to speak to an operator within the building. I made use of the phone a couple of times to ring Karen and talk over the offer; together we calculated how much I needed to repay her.
The documents provided by the manager were mostly hand-written and included copies of the so-called ‘guarantees’ I had received. According to one of the documents. there was only a ‘single’ fault, lasting only ‘three weeks’, that triggered the recorded message (RVA) that my number was not connected. This document claimed that the RVA probably caused me to lose only about 50% of all incoming calls over this three-week period. Other documents referred to a minor fault in the phone exchange at Heywood plus some other minor faults which may have contributed to some call loss. The manager told me Telstra agreed to accept responsibility for these faults if I agreed to their offer
I protested and reeled off again the continuing and constant complaints I had been and still was getting from customers. Her response was a simple ‘take it or leave it’: this was Telstra’s last offer, she told me, and the only other avenue I could follow would be court proceedings. Her final comment was along the lines that, ‘Telstra has more time than you have money to fund court proceedings.’ Reluctantly, but feeling I had no other choice, I accepted. My reluctance was well justified.
By August 1993 came my first bundle of FOI documents from Telstra. In it, astonishingly, was a Telstra minute of 2 July 1992, which revealed that local Telstra technicians regarded my complaints were correct about the ‘service disconnected’ RVA on my line. Not only that, the observation was made that the problem, ‘is occurring in increasing numbers as more and more customers are connected …’ Senator Alston raised this document in Senates Estimates in February 1994, demanding a response from Austel. No response was forthcoming, and nowhere else did this revelation gather any advance for my cause.
And two years later I received a copy of an FOI document headed Telecom Secret. This was a copy of the notes brought by the manager to the settlement meeting. The opening page, reproduced here, shows all too clearly that Telstra knew how solid my case was. The manager had blatantly misled me into agreeing to sign.
The document goes on to state,
‘Mr Smith’s service problems were network related and spanned a period of 3–4 years,’ and, ‘Overall, Mr Smith’s telephone service had suffered from poor grade of network performance over a period of several years; with some difficulty to detect exchange problems in the last 8 months. (see Main Evidence File No 6)
On 13 October I reported four calls dropping out, at 1.20, 1.40, 2.00 and 3.00, and an occasion when I had answered the phone to find a dead line. Despite the Elmi machines, the Telstra technicians found, as they had in so many instances before, no faults that they could detect. What was going on?My acceptance of the offer notwithstanding, I continued to experience faults in my phone service, particularly call drop-outs when, part-way through a conversation, the line would simply go dead, and short duration rings when the phone would ring once or twice and then stop, with no-one there if we picked up the receiver. Finally, in October of 1992, the area general manager arranged for two testing machines (called ‘Elmi’ machines) to be installed, one at the local Cape Bridgewater exchange and the other at my office.
It was two years before I got any elucidation from Telstra, and even then it shed no light on the matter. In 1994, in a bundle of FOI documents I received was a hand-written file note stating,
‘We had the Elmi disconnected at the RCM [exchange] and were installing it at Mr Smith’s house and the CCAS showed no evidence of above [not receiving ring] 1.20, 1.40, 2.00 and 3.00.(see Main Evidence File No 28)
This was simply not the case at all; I knew they were not installing it at my house at this time; it was already installed. So I asked Telstra to supply their Elmi print-outs from September–October 1992. Some weeks later a number of documents arrived, including tapes which show that the call drop-outs and dead lines that I had experienced appeared on Telstra’s monitoring equipment (CCAS) records as answered calls at approximately 1.30 pm and 3 pm (see Main Evidence File No 28.
I could not fathom why a local technician would state that the Elmi equipment was disconnected at the exchange and to be installed at my house when these two print-outs show that it was actually installed and operating at both locations, albeit incorrectly. I could only assume that all this reflected the competence and capacity of Telstra’s fault centre, as well as the accuracy of their records and reportage. That thought alone was very worrying when you are reliant on the telephone.
And now I began to suspect that there might not be a simple answer to the phone faults, just waiting to be discovered and fixed. It looked as if the problems were endemic throughout the organisation and its infrastructure.
As I struggled from the end of 1992 to the New Year of 1993 I began to wonder if ‘settling’ with Telstra had been such a good idea. Nothing had changed. I had been forced to re-finance, incurring more set-up fees, and because I still couldn’t afford to maintain the camp properly the place was looking decidedly abandoned. I felt as if I had been abandoned too. Both the buildings and I were tired, run-down and in need of a face lift!
Towards the end of 1993 the Shadow Minister for Communications, the Hon Senator Richard Alston, showed an interest in something four small-business operators appeared to have uncovered concerning major network problems within the then-government owned telecommunications carrier (Telecom). He and Senator Ron Boswell of the National Party both pushed for a Senate inquiry into our claims and, I have since been told by an ex-Telecom/Telstra employee, we were very close to succeeding.
If this Senate inquiry had got off the ground, heads in Telstra might have rolled but it didn’t happen, and those same ‘heads’ continue to control Telstra to this day. Even though Senator Boswell is based in Queensland and most remaining members of COT are in Victoria, he has continued to offer his support. David Hawker MP, my local parliamentary member, is another who honoured his duty of care to his constituents and answered our call for help. He took my claims seriously — indeed, he took the larger problem of poor phone service in his electorate seriously and was appalled at its extent. Mr Hawker sent me letters of support, put relevant people in touch with me, organised assistance for me and has continued to go into battle on COT’s behalf for many years now. I just could not understand why an Australian owned telecommunications company would set out to destroy fellow citizens of that country. Nothing added up and still does not add up in 2016, twenty-four years later.
I realised I had phone line issues through people reporting their difficulties in trying to reach me. I began to check my bills carefully and to request feedback from clients. I received many letters from schools, clubs and singles’ clubs, concerning the difficulties they had experienced when trying to contact my business by phone. The executive officer of the Camping Association of Victoria, Mr Don MacDowall, wrote on 6 May 1993 to say that 10,000 copies of their resource guide, in which I had advertised, had been direct mailed to schools and given away. Most of the other advertisers with ads similar to mine, he said, had experienced an increase in inquiries and bookings after the distribution of these books and so it seemed evident to him that the “malfunction of your phone system effectively deprived you of similar gains in business”. He also noted that he had himself received complaints from people asking why I was not answering my phone. During this period, I received 36 letters from different individuals as well as more than 40 other complaints from people who had unsuccessfully tried to respond to my advertisements. The Haddon & District Community House wrote in April 1993:
“Several times I have dialled 055 267 267 number and received no response — dead line. I have also experienced similar problems on your 008 number. Our youth worker, Gladys Crittenden, experienced similar problems while organising our last year’s family camp, over a six month period during 1991/1992.”
In personal desperation I decided to ring Don Burnard, a clinical psychologist hired on behalf of the COT members when we were first created the group. After consultation, Dr Burnard wrote the following:
“All of these clients have been subjected to persistent environmental stress as a result of constant pressure in their business and erratic patterns of change in the functioning of their telephones which were essential to the success of their businesses.”
In the first five months of 1993, I received 11 written complaints, including letters from the Royal Children’s Hospital (Arbitrator File No/90) and the Prahran Secondary College in Melbourne.
“To Whom it May Concern, A group from the Centre for Adolescent Health (Royal Children’s Hospital) in Melbourne, recently spent a week from Monday 19th April to Friday 23rd April at the campsite. Two of our leaders attempted to make phone calls at 6.25 pm on Tuesday evening and experienced a deal line when trying to ting out. A number of our campers attempted t make calls on the Gold Phone during the week and were unsuccessful.
Many of our campers and leaders had chronic illnesses therefore it was vitally important that out group had easy access to an operating telephone system 24 hours a day, in the event of a medical emergency. We would require a guarantee that the telephone system was fully operational before considering Cape Bridgewater Camp as a future venue”.
Louise Rolls’ statement in her letter (above) that the children’s hospital,“would require a guarantee that the telephone system was fully operational before considering Cape Bridgewater Camp as a future venue,”was, in the circumstances, a fair comment. Most accommodation venues could provide such a guarantee confidently, as would most tourist operators, particularly those who book aged pensioner holiday packages.
Sadly, I was unable to guarantee the telephone system at my venue because of the systemic lock-up problem affecting all four of my service lines. The children’s hospital never came back to my venue again.
After I received the above letter from the children’s hospital, I attempted to telephone clinical psychologist Dr Burnard for support, only to have my conversation with his receptionist interrupted three times by phone faults. Later I received a letter from his office, saying:
“I am writing to you to confirm details of telephone conversation difficulties experienced between this office and our residence mid-morning this day, 5 May 1993. At approximately 11.30 am today Mr Alan Smith telephoned this office requesting to speak with Don Burnard. Mr Burnard was not available to take his call. During this time the telephone cut out three times. Each time Mr Smith telephoned back to continue the call “.
In August 1993 Rita Espinoza from the Chilean Social Club wrote:
“I tried to ring you in order to confirm our stay at your camp site. I found it impossible to get through. I tried to ring later but encountered the same signal on the 10th of August around 7 – 8.30 pm. I believe you have a problem with the exchange and strongly advise you contact Telstra. Do you remember the same problem happened in April and May of this year? I apologise but I have made arrangements with another camp.”
The faults had now plagued my business, unabated, for more than five years
Towards a Settlement Proposal
Telstra management wanted to force COT members into court, well aware that their highly paid lawyers would eat us alive. It looked increasingly sure that this was their plan. By now, AUSTEL was concerned at Telstra’s approach to our complaints, particularly their use of outside solicitors. Sometime during August or September of 1993 I advised AUSTEL’s general manager for consumer affairs, John MacMahon, that Telstra’s general manager (commercial) had instructed me to direct all my future phone complaints through their outside solicitors. These complaints were to be made in writing, addressed to a particular lawyer (name removed for obvious reasons). I discuss this particular lawyer and the effect of directing all of my phone complaints through him, later. In October 1993, AUSTEL chairman Robin Davey told Telstra’s commercial division that AUSTEL would not be happy if outside solicitors were used in future COT matters. Mr Davey’s suggestion fell on deaf ears however and through to 28 January 1994, Telstra continued to insist that I register my complaints through their solicitors. Later, when Telstra submitted their defence of my arbitration, these same solicitors also acted as their defence counsel.
Towards the end of 1993 the COT group was lobbying hard on two counts. First, we were pushing for settlements in the form of a commercial assessment that would properly address the financial losses our businesses had suffered. This would be a specifically non-legalistic process. The Labor government of the time had endorsed it as the most appropriate path towards justice in our case. In 1994, during my government-endorsed Telstra settlement/arbitration process, one of my arbitration consultants, Barry O’Sullivan (or his secretary) wrote on an internal memo:
“…We also need to take into account the fact that Mr Smith has suffered stress and has been diagnosed as suffering from post traumatic stress syndrome. This disorder has been documented by his resident Psychologist in Portland Kay Frankin, and also a psychiatrist he has visited in Geelong, Dr Chris Mackie”.
While somewhat reluctant to disclose I suffered post-traumatic stress syndrome, it is of considerable significance, because the COT saga has played an integral part in it. Many other COTs have suffered from similar stress-related issues. If we had lost our businesses, or a significant part of our businesses, as a result of fire, theft, floods or bad management decisions, most of us could accept what had happened and even if we were not happy about the circumstances we found ourselves in, we would eventually find ways to sort through issues, and move on. Before the advent of emails and internet generated businesses, fully functioning phone and fax machines were essential to the successful operation of businesses dependent on them for clients.
For the first six years of my business operation, the only alternative available when the phone lines were not working, was to drive 20 kilometres into Portland to make my phone calls. We did not even have a public phone in Cape Bridgewater until after 1995. On the occasions I tested my business phone line by ringing my office from the Portland public phone, imagine my dismay and frustration when I consistently received a recorded telephone message announcing that the number you are ringing (my own business!) is not connected, when I knew it certainly was connected to Telstra’s network.
For the purpose of highlighting that anyone can fall victim to this stressful situation I will briefly move forward eight years to when I sold my beloved holiday camp in December 2001; six years after my arbitration process had failed to rectify the ongoing telephone and faxing problems. Darren Lewis, the new proprietor of my business, also sought help from a psychologist in Portland to assist him in dealing with a business which had massive telephone communication problems up to at least November 2006.
A psychologist visited me on 23 February 2007 to discuss Darren’s psychological state and the suicidal thoughts he was, then, reporting. He also wanted to confirm that the dreadful telephone saga Darren was talking about was real, and not his imagination.
Returning back to April and May 1993, where our lives were being torn apart by Telstra’s refusal to accept that we four might have valid claims. Telstra’s internal emails confirm Telstra’s management was trying to force us four COT members into court.
The author of one of these internal Telstra memo to senior executives on 21 April 1993, for instance, referred to raising the issue of court with us:
“Don, thank you for your swift and eloquent reply. I disagree with raising the issues of the courts.That carries an implied threat not only to COT cases but to all customers that they’ll end up as lawyer fodder. Certainly that can be a message to give face to face with customers and to hold in reserve if the complainants remain vexatious” (See Arbitrator File No 57)
Clearly, Telstra management intended to decide when claimants were becoming vexatious and that this would be when they would threaten the claimants with legal action. This decision, from a corporation continually held up to be a benevolent organisation and acting for the good of the Australian public; yet behind closed doors, Telstra management intended to turn legitimate claimants into lawyer fodder if they persisted with their claims. This April 1993 Telstra document had a particularly devastating effect on me.
If this is not enough skullduggery, consider Telstra’s executives were clearly aiming to muzzle the media regarding the validity of our valid claims. The sense of fear within the COT group was understandable, but it intensified once it became apparent that this government owned corporation had the COT cases under surveillance. This Telstra internal email dated 16 June 1993 discusses a TV news programme:
“Good news re channel nine news. Haven’t checked all outlets but as it didn’t run on the main bulletin last night, we can be pretty certain that the story died the death. I wish I could figure which phase it was that convinced [A TV journalist] not to proceed. Might have been one of Jim Holmes’ [Telstra Corporate Secretay] pearls…
Neil Mitchell had another bite this morning. Said to keep those faxes rolling into Schorer.” (See Arbitrator File No/93)
The Telstra executive who apparently delved in pearl diving was Telstra’s corporate secretary. What type of pearl was cast by this high-flying corporate secretary? Were they pearls of wisdom, financial pearls or another type of pearl that convinced a respected journalist to drop a story? The Neil Mitchell referred to in this email was and still is a talkback interviewer on Melbourne’s 3AW693 radio station.
It is important to note that COT spokesperson Graham Schorer had a very high regard for Neil Mitchel and 3AW693during this very difficult period in our lives.
Why is this particular instance so important, that I raise here? The answer is simple. If indeed metaphorical pearls can convince a respected journalist to drop a story, cannot similar pearls be cast before other professionals assigned to the forthcoming COT case arbitrations, to entice them not to act independently? It is clear from documents on absentjustice.com that relevant adverse material against Telstra and others assisting Telstra, was concealed to prevent it being addressed during my arbitration.
The two attached emails dated 25 October 1993 (FOI folios A06537 and A01554), from Telstra’s Don Pinel to Telstra’s Corporate Secretary, Jim Holmes, and the third Telstra email dated 27 October 1993 FOI folio A01554, also from Don Pinel to Jim Holmes (see TIO Evidence File No 7-A to 7-C), are so significant. It is important to first understand that there appears to be a number of arbitration officials within the Establishment who were aware that Telstra knew, in advance, that they would not be able to supply any of their historic technical data (commonly referred to as Leopard fault data) before the COTs went into arbitration. What we are saying is that we believe, if the two Senators and Warwick Smith had known, before the COTs signed for their arbitrations, that Telstra would never be able to supply the FOI documents requested by the claimants regarding this very important historic faults data, then they would not have allowed the COTs to enter into a process that was so obviously going to be totally undemocratic. Although there is nothing in this document concerning Jim Holmes’ pearls which appears were provided to the media to keep them from writing bad publicity about Telstra the referred to Jim Holmes was one of the same Corporate Secretary which dished out these pearls.
Telstra’s Corporate Secretary at the time, Jim Holmes, was advised in all three emails (A01554, A06507 and A06508) that the Leopard Fault data (which was the technical data that Telstra kept regarding exchange faults) had been destroyed once it was more than twelve months old. Mr Holmes was, at the same time as being Telstra’s Corporate Secretary, also a member of the TIO Board when the first four COT claimants (Gillam, Garms, Schorer, and Smith) formally signed their arbitration agreements, but it seems that Mr Holmes did not alert the Government to this destruction of records, even though, after all, the Government had endorsed the arbitration agreements; neither did he warn the TIO, who administered the arbitrations, that the claimants would not be able to support their claims effectively because Telstra had destroyed all the historical data, at least from 1992 on. Have Telstra, and The Hon Richard Alston, and his fellow Coalition Government Ministers ever stopped to consider what followed, once Telstra had managed to keep this serious matter secret? Have Telstra and the Australian Government ever considered the financial cost to each claimant (let alone the psychological stress) as they tried to access information that Telstra knew had already been destroyed, years before they went into arbitration? The costs that accumulated for each and every one of the COT cases ran into hundreds of thousands of dollars as they struggled to access this non-existence fault data (and other Telstra data) in support of their arbitration claims. Has the Senate ever considered the cost, not just in dollars but also in the eighteen months that various Senators spent between September 1997 and March 1999, assisting the COT Cases in their various attempts to access technical documents, when Telstra knew they had been destroyed years before any of the COT Cases went into arbitration?
The fact that Telstra’s Corporate Secretary, Jim Holmes, knew about this destruction of so-called ‘old’ data, for a fact, as emails A01554, A06507 and A06508 (see TIO Evidence File No 7-A to 7-C) show, and yet, on 18 November 1993, still he chose to sign all four FTSP agreements for the first COT Cases, while he was also a TIO Board member, and therefore attended the TIO monthly Board meetings, even when COT Cases arbitration issues were discussed, but he never passed on to the TIO exactly what he knew concerning these destroyed documents that the claimants were trying to access, has further made the COT arbitrations a mockery of the Australian legal system.
Have the ACMA Board, the TIO Board and the TIO Council fully understood how much it has cost tax payers for Telstra to defend the COT Cases claim when Telstra was a fully-Government-owned corporation? The cost to the taxpayer included the hiring of the TIO-appointed arbitrator; the TIO-appointed Special Counsel; and the TIO-appointed Resource Unit – and all this money was spent as part of a process where the Government owned telecommunications carrier had already secretly withheld from the government who owned them and the Senate that the claimants would be wasting hundreds of thousands of dollars (and in most of the cases) borrowed money in their attempt to gain access to documents members of the TIO Board (the administrators of the arbitrations) and Telstra new had already been destroyed.
When Jim Holmes did not ensure the TIO board was notified that the COT cases may have problems trying to prove their historic phone complaints because Telstra had destroyed that data, he was partly responsible for the COT cases racking up thousands of dollars in wasted arbitration fees, including paying technical consultants for advice on what historic data was needed to support various claims, when that data no longer existed.
Mr Holmes did not advise the TIO (the administrator of the COT arbitrations) that the arbitration agreement the claimants were signing should be revised because there was no historic fault data.
The Briefcase Saga
Are those parties who concealed so much of my relevant claim material from me proud owners of pearl necklaces? This corporate secretary was also a member of the Telecommunications Industry Ombudsman Board (TIO) during the TIO-administered COT arbitrations. On 3 June 1993, because of my constant complaints to the regulator, including incorrect charging, Telstra’s network investigations department was finally involved and, for the very first time, Telstra investigators were sent to Cape Bridgewater. At last, I thought, I would be able to speak directly to people who knew what they were talking about and find the underlying cause of the issue. However, the two Telstra senior technicians from Melbourne told me nothing I hadn’t heard before. With nothing resolved, they finally prepared to leave and head back to town.
One particular document labeled Problem 1 shocked me. It referred to Telstra being aware that the RVA fault of March 1992 had actually lasted for eight months, not the alleged three weeks that I’d been told on the day I accepted my compensation payment. I received a copy of a similar document (see AUSTEL’s Adverse Findings) further supporting this document, in November 2007 from the now-Australian Communications Media Authority.
My own transport was, by this time, long gone; sold to pay some of my mounting debts, and I also needed to go into Portland. The technicians offered me a lift. After spending some time in Portland I got a lift back to Cape Bridgewater with a neighbour. In my office I found that one of the technicians had inadvertently left behind a briefcase. I opened the briefcase to find out who owned it and the first thing I saw was a file titled SMITH, CAPE BRIDGEWATER. After five gruelling years fighting with Telstra and being told various lies along the way, here was possibly the truth, as seen from Telstra’s perspective. Some of the documents in this file were much too technical for me to interpret. Some that I could decipher, however, dated back to the compensation payment I received on 11 December 1992. The Smith, Cape Bridgewater file was provided to Senator Richard Alston in August 1993, during a meeting in his Melbourne office.
The important documents left in that briefcase provided evidence that discussed the manner in which they settled with me in December 1992. Telstra had known that major faults still existed in their network at the time of the settlement (see Main Evidence File No 26 for example) but they did not disclose this to me during the settlement process. The documents quickly exposed that Telstra were fully aware their inadequate service and the major communication problems were affecting the viability of my business endeavours.
Senator Richard Alston (currently the president of the Federal Liberal Party) discussed the Problem 1 document on 25 February 1994 during a Senate Estimates hearing. Another previously unseen document, dated 24 July 1992 and provided to Senator Richard Alston in August 1993, includes my phone number and refers to my complaint that people ringing me get an RVA “service disconnected” message. Yet another document, dated 27 July 1992, discusses problems experienced by potential clients who tried to contact me from Station Pier in Melbourne. (See Arbitrator File No 60). Some of these hand-written records go back to October 1991, and many of them were fault complaints that I had not recorded myself. Telstra, however, has never explained who authorised the withholding of these names (those who had complained to Telstra) from me. If I had known who had been unable to contact me, I could have contacted them with an alternate contact number for future reference.
This 9 June 1993 letter to Telstra from AUSTEL confirms AUSTEL was concerned that I had been misled and deceived by Telstra during the settlement. Referring to my allegations that Telstra had withheld this information from him on 11 December 1992, this letter states:
“Further, he claims that Telecom documents (found in the briefcase) containnetwork investigation findings which are distinctly different from the advice which Telecom has given to the customer concerned.
In summary, these allegations, if true, would suggest that, in the context of the settlement, Mr Smith was provided with a misleading description of the situation as the basis for making his decision. They would also suggest that the other complainants identified in the folders have knowingly been provided with inaccurate information
I ask for your urgent comments on these allegations. You are asked to immediately provide AUSTEL with a copy of all the documentation which was apparently inadvertently left at Mr Smith’s premises for his inspection. In light of Mr Smith’s claims of continuing service difficulties, I will be seeking to determine with you a mechanism which will allow an objective measurement of any such difficulties to be made”.(See Arbitrator File No 61)
Telstra later told me they had copied the same ‘briefcase’ evidence on to AUSTEL for assessment.
Telstra’s Corporate Secretary
On 27 August 1993, Telstra’s corporate secretary wrote to me about the same ‘briefcase’ documents, noting:
“Although there is nothing in these documents to cause Telecom any concern in respect of your case, the documents remain Telecom’s property and therefore are confidential to us.”
Later in the letter:
“I would also ask that you do not make this material available to anyone else.”(See Open Letter File No/2)
Telstra’s FOI document dated 23 August 1993 and labelled as ‘folio R09830’ with the subject listed as ‘The Briefcase’ is alarming to say the least. This document, which had been copied to Telstra’s Corporate Secretary, notes:
“Subsequently it was realised that the other papers could be significant and these were faxed to (name deleted)but appear not to have been supplied to Austel at this point.
“The loose papers on retrofit could be sensitive and copies of all papers have been sent to.”(See Arbitrator File No 62)
The document headed Can We Fix the Can (see Main Evidence File No 16) clearly shows that Telstra’s rural network was in a much worse state than anyone could have imagined. The word ‘alarming’ is used in relation to this briefcase document because the second appointed TIO, later told the Senate Estimates Committee that COT/TIO-administered arbitration issues were openly discussed at regular monthly TIO Council meetings, which suggests that they would have been discussed at monthly TIO Board meetings too. In other words, Telstra having their corporate secretary attending monthly TIO Board meetings when COT case arbitration matters were discussed (such as this briefcase saga) was extremely beneficial, unless of course you were the claimant. It was clear from the briefcase information that Telstra was concealing just how bad their rural network was, from the government
“I understand there is a new tariff filing to be lodged today with new performance parameters one which commits to 98% call completion at the individual customer level.
“Given my experience with customer disputes and the BCI study, this is a cause for concern. We will not meet this figure in many exchanges around Australia particularly in country areas”.
The pressure on all four of us COT cases had been immense, with TV and newspaper interviews as well as their continuing canvassing of the Senate. The stress was telling by now but I continued to hammer for a change in rural telephone services. The Hon David Hawker MP, my local Federal Member of Parliament had been corresponding with me since 26 July 1993.
“A number of people seem to be experiencing some or all of the problems which you have outlined to me. I trust that your meeting tomorrow with Senators Alston and Boswell is a profitable one” (See Arbitrator File No/76)
and on 18 August 1993 The Hon David Hawker MP again wrote to me noting:
“Further to your conversations with my electorate staff last week and today I am enclosing a copy of the correspondence I have received from Mr Harvey Parker, Group Managing Director of Commercial and Consumer division of Telecom.
“I wrote to him outlining the problems of a number of Telecom customers in the Western Districts, including the extensive problems you have been experiencing”. (See Arbitrator File No/77)
I have not concealed the name of this particular Telstra executive, Mr Harvey Parker, because I believe that, if other Telstra executives had carried out their duties as impartially as this executive did (as is shown in quite a number of documents), Telstra would never have decided that the COTs were such a threat. We four ordinary people were entitled to challenge a system that supplied the ‘big end of town’ with a reliable phone service while ignoring the other ‘end of town’, i.e. the small businesses that didn’t have the same sort of corporate power as Telstra did. If the COT arbitrator, and others close to him, had acted like this Telstra executive and actually looked into the claims we were making, rather than plot a way to just get rid of us as quickly as possible, I would still own the business next door – the Cape Bridgewater Holiday Camp. It now seems that no-one else involved in this COT dispute was as honest as this person, a true gentleman.
To summarise: Senators Alston and Boswell took up COT’s cases with Telstra and AUSTEL in August 1993, saying that if they were not swiftly resolved there would be a full Senate Inquiry. Telstra agreed to cooperate, and AUSTEL was authorised to make an official investigation into our claims. As a result of their investigation, AUSTEL concluded that there were indeed problems in the Telstra network and that the COT four had been diligent in bringing these issues into the public domain. It looked like four Australian citizens, without any financial backing, had won a significant battle.
Sometimes, we thought, David wins over Goliath, even in the 20th century. Because we were all in such difficult financial positions, AUSTEL chairman, Robin Davey, recommended that Telstra appoint a commercial loss assessor to arrive at a value for our claims. These claims had already been found generally to be valid in AUSTEL’s report, and it only remained for an assessor to determine an appropriate settlement based on the detailed quantification of our losses. This Fast Track Settlement Process was to be run on strictly non-legal lines. This meant we were not to be burdened with having to provide proof to support all of our assumptions, and we would be given the benefit of the doubt in the quantification of our losses. This was the process AUSTEL specifically deemed appropriate to our cases. Telstra was to give us prompt and speedy access to any discovery documents we needed to enable us to complete our claims as quickly as possible.
Telstra also agreed that any phone faults would be rectified before the assessor handed down any decision regarding payouts. After all, what good would a commercial settlement be if the phone faults continued? At last we began to feel we were getting somewhere. Robin Davey also assured us that any costs we might incur in preparing our claims would be considered part of our losses, so long as our claims were proved. However, he would not confirm this assurance in writing because, he said, it could set an unwanted precedent. Telstra was anxious about setting precedents. On 18 November 1993, Telstra’s corporate secretary wrote to Mr Davey pointing out that:
“… only the COT four are to be commercially assessed by an assessor. For the sake of convenience I have enclosed an amended copy of the Fast Track Proposal which includes all amendments. To facilitate its acceptance by all or any of the COT members I have signed it on behalf of the company. Please note that the offer of settlement by this means is open for acceptance until 5 pm Tuesday 23 November 1993 at which time it will lapse and be replaced by the arbitration process we expect to apply to all carriers following Austel recommendations flowing from this and other reviews.”
In effect, we four COT members were being given special treatment in terms of having a commercial assessment rather than the arbitration process. By this time AUSTEL was dealing with another dozen or so COT cases. We four were being ‘rewarded’ for the efforts we had made over such a long period of suffering business losses.
This internal Telstra email dated 14 October 1993, which was copied to three other senior Telstra executives, notes:
“We need to focus AUSTEL’s attention as much as possible on the current rather than the past level of service delivered to the Cot Cases.
“Para 8. – Instead of “was not as high as desired” change to “did not meet customer’s expectations …”(see Arbitrator File No 59, FOI folio R03331)
A most startling document which I received long after my arbitration Telstra FOI folio 101072 to 10123 titled In-Service Test Performance For The Telecom Australia Public Switched Telephone Service (Telecom Confidential) notes:
“The performances tabulated below have been formulated to aid dispute investigation and resolution. The information contained herein is for internal Telstra Corporation use only and must not be released to any third party, particularly AUSTEL.” (see 101072 in Arbitrator File No 63)
Legal Professional Privilege
If AUSTEL had known that this document included the words: “must not be released to any third party, particularly AUSTEL”, perhaps their public servants might not have perjured themselves in defence of Telstra’s arbitration claims that all the Service Verification Testing at my business on 29 September 1994 had met all of AUSTEL’s specifications? And I believe those public servants certainly did perjure themselves, not only in their 2 February 1995 letter but again in the third COT cases quarterly report to the communications minister, the Hon Michael Lee MP. Our Main Evidence File No/2 and File No 3confirm that, at my premises at least, Telstra definitely did not carry out their Service Verification Testing (SVT) to AUSTEL’s mandatory specifications, at all.
At the very beginning of this Arbitrator Part One link I have raised the issue of the government communications regulator writing to Telstra, before the COT arbitrations began, to warn them that the government would be quite concerned if a certain legal firm had any further involvement with the COT settlement/arbitration process. I also raised my concern when the arbitration agreement faxed to the TIO’s office on 10 January 1994 bore the abbreviated name of this very same legal firm, despite the government assuring us this firm would NOT have a continuing role to play.
This FOI document folio, dated September 1993, was one of the 24,000 documents that were released to me by Telstra under FOI too late for me to use in my arbitration claim. As it was released to me, one would have to assume it relates to my telephone problems:
“All technical reports that relate to the customer’s service are to be headed “Legal Professional Privilege”, addressed to the Corporate Solicitor and forwarded through the dispute manager.” (Arbitrator File No/80)
When Telstra stated in September 1993 that they would not address further telephone complaints unless I first registered them in writing with their external lawyer, unfortunately I didn’t realise Telstra expected this process would classify all technical documents connected to complaints I registered with this firm as Legal Professional Privilege.
10 September 1993: Telstra FOI document folio N00749 to N00760, from this legal firm to Telstra’s corporate solicitor, relates to strategies that were about to be used in dealing with the COT arbitration cases. Folio N00749 is the first page of this strategy. Note, I have deleted the name of the legal firm who addressed this letter to Telstra:
“[We] would be happy to assist you should any further presentations to Telecom management be required on any of the matters raised in the issues paper or with regard to any other matters concerning management of “COT” cases and customer complaints.”
It is clear from FOI folio N00750 that this legal firm has singled out four of the COT Arbitration Cases businesses: Graham Schorer Golden Messenger, Ann Garms Tivoli Theatre Restaurant, Maureen Gillan Japanese Spare Parts and Alan Smith Cape Bridgewater Holiday Camp, in which Legal Professional Privilege (LPP) was to be used to conceal documents from those four cases. In June 2000, renowned Legal Professional Privilege expert, Associate Professor Suzanne McNicoll, provided the COT claimants with the following legal opinion regarding Telstra’s external lawyers ‘COT Case Strategy’ i.e.This document is important because this same legal firm was also involved with the employment of private investigators (paid by Telstra) in relation to at least one of the four COT cases and possible all four claimants.
“There is also some potential prima facie evidence of (4) i.e. knowingly making false or spurious claims to privilege. For example, there is potential structure set up for the possible abuse of the doctrine of legal professional privilege in the faxed document entitled “COT” Case Strategy, marked “Confidential” dated 10 September 1993 from (this legal firm) to Corporate Solicitor, Telecom Australia.”
This FOI document folio R00524 dated for the month of September 1993 was released to me by the Telstra under FOI and therefore appears to relate to my telephone problems noting:
“All technical reports that relate to the customer’s service are to be headed “Legal Professional Privilege”, addressed to the Corporate Solicitor and forwarded through the dispute manager”.
Telstra FOI document folio P03022 is an internal email dated 23 September noting:
“In the current climate Telecom needs to be particularly careful with its correspondence to the CoT customers. I have engaged (this legal firm) to participate on an “as required” basis in this matter and it is appropriate that all correspondence from the CoT (and near CoT) customers should be channelled through(the person I had to register my phone complaints with) for either drafting of the reply from Telecom or for the reply direct from (this same lawyer)as our agent.”(Arbitrator File No/81)
It goes on to say:
“Would you please ensure that with all customers that are, (or have the potential to become) serious complaints, correspondence is processed through (Telstra’ outside lawyers) with initial acknowledgement by the Region.”
On the 5 October 1993, Robin Davey, AUSTEL’s Chairman provides a draft of the agreement to be used in the four COT Arbitration Cases, for Graham Schorer (Golden Messenger), Ann Garms (Tivoli Theatre Restaurant), Maureen Gillan (Japanese Spare Parts) and Alan Smith (Cape Bridgewater Holiday Camp), Fast Track Settlement Proposal to Telstra’s Managing Director, Commercial noting:
“Finally, if the attached letter (Attachment ‘D’) dated 7 July 1993 from (Telstra’s external lawyers) to one of the COT Cases’ solicitors is indicative of the way that(these same lawyers) have approached the COT Cases in the past, I would be more than a little concerned if they were to have a continuing role.”(See Arbitrator File No/107)
It is important to note that during the first week of January 1994, the COTs advised the TIO, who was also the administrator of both the Fast Track Settlement Proposal and the Fast Track Arbitration Procedure, that Robin Davey, had assured the COTs that this external legal firm would no longer be involved in their Fast Track Settlement Proposal. An internal Telstra email (FOI folio C02840) between Telstra’s executives notes:
“[Australian Financial Review news reporter] is following up on his own yarn NOT with the Davey letter to the minister but with the Davey letter to the CEO raising concerns about our use of [this same external legal firm].” (See Arbitrator File No/106)
Later, between January and March 1994, the COTs again spoke to the TIO concerning Telstra appointing this same external legal firm as their Fast Track Arbitration Procedure defence lawyers. The TIO’s response was that it was up to Telstra who they appointed as their arbitration lawyers, even though I advised the TIO (March 1994) that I had been forced to register my phone complaints through this legal firm and I had still not been provided with any technical data to support this legal firm’s assertions that there was nothing wrong with my telephone/fax service. Even the TIO Special Counsel had problems sending me faxes. During and after my arbitration I raised my concerns that the arbitrator had not addressed this legal firm’s submission of Telstra witness statements that had only been signed by lawyers and not by the witness making the statements.
Nothing was transparently done regarding this matter other than to send this witness statement back to be signed by the alleged author of the statement. My 1995/96 arbitration appeal lawyers (Law Partners of Melbourne) were not only staggered to learn about this witness statement issue, but was also staggered to learn that none of the arbitration fault correspondence that was exchanged between this legal firm, Telstra and myself was ever provided to me as it should have been according to the rules of discovery.
In fact, Law Partners of Melbourne suggested that perhaps Telstra had originally appointed this legal firm to be my designated fault complaint managers so that any of that correspondence would form what Telstra believed to be a legal bridge, so that my ongoing telephone fault evidence could be concealed under Legal Professional Privilege during my arbitration. Telstra’s continued use of this legal firm throughout these arbitrations and the arbitrator’s refusal, in my case, to look into why Telstra was withholding technical data under Legal Professional Privilege, suggested, that at the time, the arbitrator was not properly qualified. He didn’t seem to understand that Telstra could not legally conceal technical information under Legal Professional Privilege. As this story reveals, the arbitrator was, in fact, not a graded arbitrator at all, and was not registered as an arbitrator with the arbitrator’s umbrella organisation, then-called the Institute of Arbitrators Australia.
None of the ongoing fault complaint documents that I provided to this legal firm, both before and during my arbitration, were ever returned to me under the legal discovery process. What was so appalling about the TIO not abiding by the government regulator’s assurance in relation to this legal firm is that the Senate Estimates Committee investigation into five of the COT arbitrations, carried out between late 1997 and March 1999, found heavily against Telstra’s arbitration defense for concealing documents. In other words, if the TIO’s office had just done what the government regulator had wanted, I might not be here now, still trying to get justice through absentjustice.com.
At Camp Bridgewater, we acquired a logo especially for the over-40s singles club, which we were calling The Country Get-A-Ways. I approached this with determination, marketing a range of different week-end holidays. We had organised an outdoor canoe weekend, a walking and river cruise along the Glenelg River, a Saturday Dress-up Dinner Dance with a disco, a trip to the Coonawarra Wineries in South Australia and a Saturday morning shopping tour to Mt Gambier, also in South Australia. We marketed the holidays in both Victoria and South Australia. A special feature in the Melbourne newspaper The Age, gave the project a great write-up and I began to feel things were finally looking up for the camp. My spirits rose, at least temporarily. Then another plummet into despair: on 26 October a fax arrived from Catharine, a relative of the journalist who had written the feature for The Age:
“Alan, I have been trying to call you since midday. I have rung seven times to get an engaged signal. It is now 2.45 pm.”
Catharine had been ringing on my 1800 free-call line. Later, I checked this fax against Telstra’s own CCAS data for that day. Telstra’s records show one call at 12:01, lasting for 6 minutes and another call at 12:18.14, lasting for 8 minutes. There were no incoming calls at all between 12.30 and 2.44 that day. Where had Catharine’s calls been going? I was devastated but I decided not to let the bastards get me down. Their continuing lies and assertions that they had found no faults on my service line must be exposed. So, I stepped up the marketing of the camp and the singles-club week-ends, visiting numerous known social clubs around the Melbourne metropolitan area and talking personally to the people in charge. Over the next few weeks I spoke to the Phoenix Social Club in Camberwell, the Australian Social Centre in Hartwell, Frenze-In-Deed in Mont Albert and Capers in Knox City. I also visited other singles’ organisations in Ballarat and Warrnambool, and large country centres in Victoria. Further newspaper advertising followed with ads placed with the Leader Newspapers group in Melbourne.
This local newspaper group covers 23 different metropolitan areas around Melbourne. Ads also went into the local newspapers for a number of large regional centres around Victoria and South Australia, including the Geelong Advertiser, The Warrnambool Standard, Ballarat’s The Courier, Horsham’s The Wimmera Mail-Times, the Colac Herald, Mt Gambier’s The Border Watch etc. Complaints about the phones continued. People had so much trouble getting through to the camp and, although some obviously persevered, God knows how many simply gave up trying. Pressures from Telstra’s lack of service delivery led to business losses, which resulted in an arbitration process being initiated in the first place. These pressures were then compounded by the inefficiency and corruption of an arbitration process that was supposed to resolve and rectify the situation. The combination of these events and experiences has led directly to health issues on a personal level for me, which no citizen in a developed country such as Australia with a modern communications services and carriers, should have had to endure.
Fast Track Settlement Proposal
The Fast Track Settlement Process was to be run on strictly non-legal lines. This meant we were not to be burdened with having to provide proof to support all of our assumptions and we would be given the benefit of the doubt in the quantification of our losses. This was the process AUSTEL specifically deemed appropriate to our cases. Telstra was to give us prompt and speedy access to any discovery documents we needed to enable us to complete our claims as quickly as possible. Telstra also agreed that any phone faults would be rectified before the assessor handed down any decision regarding payouts. After all, what good would a commercial settlement be if the phone faults continued? At last we began to feel we were getting somewhere.
Robin Davey also assured us that any costs we might incur in preparing our claims would be considered as part of our losses, so long as our claims were proved. He would not, however, confirm this assurance in writing because, he explained, it could set an unwanted precedent
10 November 1993: The following FOI document was not made available to the COT cases before they signed their Fast Track Arbitration Agreement in April 1994. If it had been available, the COTs would never have agreed to abandon the commercial assessment process and sign for arbitration. This internal email from one of Telstra’s most senior executives to Telstra’s corporate secretary, was copied to Telstra’s CEO and is clearly marked as CONFIDENTIAL with the subject title COT Cases. Please note we have replaced the name of the Telecommunications Industry Ombudsman with the abbreviation, TIO.
“…contacted me in confidence to brief me on discussions he had in the last two days with a senior member of the parliamentary National Party in relation to Senator Boswell’s call for a Senate Inquiry into COT Cases.
Advice from (TIO) is: Boswell has not yet taken the trouble to raise the COT Cases issue in the Party Room.Any proposal to call for a Senate inquiry would require, firstly, endorsement in the Party Room and, secondly approval by Shadow Cabinet. …The intermediary will raise the matter with Boswell, and suggest that Boswell discuss the issue with (name deleted). (Name deleted) the TIO sees no merit in a Senate Inquiry.
“He has undertaken to keep me informed, and confirmed his view that Senator Alston will not be pressing a Senate Inquiry, at least until after the AUSTEL report is tabled
Could you please protect this information as confidential?”
It could be said that the advice the (TIO) gave to Telstra’s senior executive, in confidence, (that the Senator Ron Boswell (National Party) Party Room was not keen on holding a Senate enquiry) could have later prompted Telstra to have the FTSP non-legalistic commercial assessment process turned into Telstra’s more preferred legalistic arbitration procedure, because they now had in-side Government privileged information there was no longer a major threat of a Senate enquiry.
Absentjustice.com exposes this single act as possibly one of the worst acts of gross inconsideration by an Ombudsman towards Australian citizens. These citizens – COT “trailblazers” – were about to sign a specially designed, legally-binding Fast Track Settlement Proposal in an attempt to have their long-standing matters commercially assessed to avoid a more arduous and expensive legal process, in their long-standing commitment to make Telstra accountable. Our files on absentjustice.com show that, two weeks before the TIO was officially appointed as the administrator of the Fast-Track Settlement Proposal, he was providing the soon-to-be defendants (Telstra) of that process with privileged, government party room information about the COT cases. Not only did the TIO breach his duty of care to the COT claimants, he appears to have also compromised his own future position as the official independent administrator of the process.
Telstra was anxious about setting precedents. It is clear from correspondence between Telstra’s corporate secretary and AUSTEL, prior to us signing the Fast Track Settlement Proposal, that only us four COT cases were to be offered this option. The settlement offer was only valid until 5pm Tuesday 23 November 1993, upon which time it would lapse and be replaced by the arbitration process offered to further complainants.
By this time, AUSTEL was dealing with another dozen or so COT cases. This special treatment, in terms of having a commercial assessment rather than the arbitration, may have been a ‘reward’ for the efforts we had made over such a long period of suffering business losses. Conversely, however, we were also pressured by this rush — we would lose the option for a commercial assessment if we didn’t sign by 23 November, a mere five days away. On signing this 23 November agreement I notified the other three COT Cases and Senator Richard Alston (Shadow Minister for communications) that I was withdrawing my support for the Senate Inquiry into Telstra. I explained that I had accepted AUSTEL’s promise of an early settlement by April 1994.
30 November 1993: This Telstra internal memo, FOI document folio D01248, from Telstra’s group manager – customer affairs and TIO council member, to Telstra’s, customer projects executive office. Subject: TIO AND COT. This was written seven days after the four COT cases had signed the TIO-administered Fast Track Settlement Proposal:
“At todays [sic] Council Meeting the TIO reported on his involvement with the COT settlement processes – It was agreed that any financial contributions made by Telecom to the Cot arbitration process was not a matter for Council but was a private matter between Telecom, AUSTEL and the TIO.
“I hope you agree with this.”
At the bottom of this memo the recipient has added a hand-written comment addressing another Telstra executive: “Seems ok to me. When I spoke to [TIO]I suggested that at least for this first group …” (see Arbitrator File No/70).
Telstra FOI folio document folio D01248 states that:
“It was agreed that any financial contributions made by Telecom to the Cot arbitration process was not a matter for Council but was a private matter between Telecom, AUSTEL and the TIO. I hope you agree with this”.
This exhibit Arbitrator File No/70shows that, members of the TIO office who were supposed to be impartial, openly discussed COT case TIO issues. NO decent, law abiding citizen can argue that it was acceptable for Telstra, the defendants, to be represented on the TIO council, when ongoing discussions about COT issues could be relayed back to them by this TIO official who was also Telstra’s FOI officer and in charge of deciding which discovery documents were sent out, when, or even IF.
Obviously this person could easily delay the release of documents that would be most damaging to Telstra, and ensure they were released at a time that would cause the least amount of damage (to Telstra). His decisions could be guided directly by information he collected regarding the progress of the 12 or so COT arbitrations being discussed at TIO council meetings! This arrangement clearly provided the defence with constant access to incredibly important in-house knowledge. This situation turned out to be the beginning of the decay, which became a cancerous situation that destroyed the lives of many COTs and their families.
Senate Hansard dated 26 September 1997 (Arbitrator File No 68) confirms that during a Senate hearing into COT issues, the then-new TIO, agreed that this particular Telstra executive had not removed himself from council discussions when COT arbitration matters were discussed.
Could there possibly be a more sinister political twist to this particular person being allowed to attend TIO council meetings when the COT arbitration claims were being discussed? It certainly seems that way. The final statement made on this Senate Hansard by Telstra’s group manager – customer affairs/TIO council member that: “My involvement in CoT cases, I believe , was known to the TIO council,” suggests that the other TIO council members had the same disregard towards the COT Cases and their civil rights as this statement made by this particular councillor with two hats.
- How can any government or fair and legal-minded person say this one issue alone, allowing the defendants to be present at any meeting where their arbitration matters are being discussed, is anything but grossly undemocratic?
- Why has there not been a transparent investigation into this deplorable denial of normal protocol
- As a qualified lawyer, why didn’t the TIO ensure that this particular TIO council member excused himself while COT arbitration matters were being discussed?
A number of other small businesses in rural Australia had begun to write to me regarding their experiences of poor service from Telstra, including problems with their phones and various billing issues. Rural subscribers wrote to TV stations and newspapers supporting my allegations that, with regard to telephone services, rural small-business people as well as the general public suffered a very bumpy playing field compared to our city cousins. An insurance loss adjuster in Ballarat wrote to the producer of Channel 7’s Real Life, a current affairs program:
“I have watched with interest the shorts leading up to tonight’s program as I have similar problems to the man at Cape Bridgewater. Our office is located in Ballarat and due to Telstra structure the majority of our local calls are STD-fee based. On many occasions we have been unable to get through to numbers we have dialled, often receiving the message ‘This number is not connected’ or similar messages which we know to be untrue.
“Clients report that they often receive the engaged signal when calling us and a review of the office reveals that at least one of our lines was free at the relevant time. We have just received our latest Telstra bill which in total is up about 25–30% on the last bill. This is odd because our work load in the billing period was down by about 25% and we have one staff member less than the previous billing period.”
A letter to the Editor of Melbourne’s Herald-Sun Newspaper, states:
“I am writing in reference to your article in last Friday’s Herald-Sun (2nd April 1993) about phone difficulties experienced by businesses. I wish to confirm that I have had problems trying to contact Cape Bridgewater Holiday Camp over the past 2 years. I also experienced problems while trying to organise our family camp for September this year. On numerous occasions I have rung from both this business number 053 424 675 and also my home number and received no response – a dead line. I rang around the end of February (1993) and twice was subjected to a piercing noise similar to a fax. I reported this incident to Telstra who got the same noise when testing.”
Later, during my arbitration in December 1994, the Telstra employee who admitted to hearing this piercing noise denied experiencing any problems with my telephone service in his arbitration witness statement.
A Telstra internal email dated 13 December 1993, shows quite clearly that AUSTEL’s deputy chairman (who, as we cannot name him, we shall call the artful dodger or Dodger for short, after Charles Dickins’ character in Oliver Twist) allowed Telstra to limit their mandatory parameter testing to only those customers that Telstra stated required testing i.e.,
“This E-Mail is to alert you to a possible regulatory interaction with the current work on “COTS Cases” and ongoing work with AUSTEL on network performance.
“As you know, a Ministerial Direction gave AUSTEL power to set end-to-end network performance standards. …
“The AUSTEL staff member leading the group originally wanted a very wide list of mandatory parameters but after discussion with [Dodger] and a presentation to the Standards Advisory Committee by[name deleted], AUSTEL have agreed to limit the scope of the initial work to the few parameters our customer surveys had shown as being of most concern.” (See Arbitrator File No/72)
Dodger, in the above memo, was AUSTEL’s acting chairman at the time. It is easy to see just how bad this situation was for me by simply linking this limiting of the mandatory testing with another Telstra internal email, dated 15 November 1993, which states that:
“Parameters for Cape Bridgewater RCM have been obtained, but I don’t believe them – I am attempting to check them. Some of the people supplying this information live in ‘old Telecom’!” (See Arbitrator File No/73)
AUSTEL concealed these (Arbitrator File No/72 and Arbitrator File No/73 and Open Letter File No/4 File No/5 File No/6 File No/7) adverse findings against Telstra, concerning the many problems still occurring at the Cape Bridgewater Holiday Camp, from the communications minister, the arbitrator and myself.
And so, at end of February 1994, we were still without the promised discovery documents and being forced down Telstra’s legally structured path. Sure enough, we were all to become the lawyer fodder that Telstra had been aiming for, even before we signed our commercial assessment processes. Why didn’t the TIO-appointed assessor (who was, after all, not a properly graded arbitrator until long after my arbitration was over) hold his ground and demand that we four COTs keep to our commercial assessment process? Telstra had signed that agreement, just as we had. And perhaps just as importantly, why didn’t the arbitrator advise all the parties that he was not properly graded?
6 January 1994: AUSTEL’s General Manger of Consumer Affairs, John MacMahon, wrote to Telstra noting:
“You are probably aware of Mr Smith’s ongoing complaints as to the efficacy of his 008 service – he maintains that many callers receive a RVA advising that the number is no longer connected.
“Further to that point is the experience of the Portland Tourist Information Centre which is now complaining of precisely the same problem.”(See Arbitrator File No/75)
Worse than this, however, was a new problem for the COT four. The assessor was somehow persuaded (presumably by Telstra) to drop the commercial assessment process he had been engaged to conduct and adopt instead an arbitration procedure, based on Telstra’s arbitration process. Such a procedure would never be ‘fast-tracked’, and was bound to become legalistic and drawn out. Telstra knew none of us had the finances to go up against its high-powered legal team in such a process. This was the last thing we COT members wanted. We had signed up for a commercial assessment and that’s what we wanted.On 17 January 1994, the TIO distributed a media release announcing that an assessor would evaluate the four COT fast track settlements. What the TIO omitted was that, as I had feared, Telstra was not abiding by their agreement: they were not supplying us with the discovery documents critical for establishing our cases. Telstra was treating us with sheer contempt, and in full view of the Senate. We were beginning to believe that no single person and no organisation, anywhere in Australia, had the courage to initiate a judicial inquiry into the way Telstra steamrolled their way over legal process.
We had been told, AUSTEL had been told and the Senate had been told: the arbitration agreement rules had been drawn up specifically for the purpose, independently of Telstra, by the president of the Institute of Arbitrators of Australia. We asked for a copy of these rules, which apparently were supplied to the TIO’s office, but the TIO refused our request, saying that it was irrelevant to our cause. More than once we asked the TIO for a copy, to no avail. We were told we should trust the arbitrator. And so, foolishly, we did. We really had no choice. We were all exhausted, stressed and clutching at straws. Singly and as a group we were vulnerable to the brute force of Telstra’s corporate power.
Between 4 June 1993 and 7 April 1994, Robin Davey, the chair of AUSTEL (the then government communications regulator) and John MacMahon, AUSTEL’s general manager of consumer affairs, discussed with COT spokesperson, Graham Schorer, and me the significance of Telstra’s concealed network documents contained in a briefcase inadvertently left at my businesses: AUSTEL directed Telstra to provide these documents. It is shown in Arbitrator Part One/Chapter Two that relevant sensitive – and damning – documents, originally in this briefcase, were concealed from AUSTEL by Telstra’s senior management.
AUSTEL advised Warwick Smith that after June 1993 it became obvious Telstra’s copper-wire network in rural Australia was grossly in need of replacing and that my ongoing telephone problems must be rectified before Dr Hughes could bring down his finding. Even though Dr Hughes was provided with conclusive proof, by his own technical resource unit as well as my own claim advisor, showing the telephone faults still affected the viability of my business, he still brought down his findings without ensuring my business was fault free.
During the time Dr Hughes did not address these ongoing billing problems, I was unaware Telstra and AUSTEL were about to address these arbitration issues in secret – outside of the arbitration agreement – and thus denying me my legal right to challenge Telstra, as I could had these matters been exposed in my arbitration. The government communications regulator had gotten into bed with Telstra.
Telstra’s Fast Track Proposed Rules of Arbitration
A forensic assessment of the 10 January 1994 document will show that, except for a few minor cosmetic changes, the agreement the four COT Arbitration cases signed on 21 April 1994, believing (as did various government ministers) it had been drafted by the president of the Institute of Arbitrators, had in fact been drafted by the defendants’ lawyers that the government communications regulator had assured the claimants would NOT be involved in their matters any further.
Even BEFORE the parties signed the agreement and, without the claimants’ knowledge or consent, a meeting on 22 March 1994 was attended by Telstra’s arbitration liaison officer, Telstra’s general counsel, the arbitrator, TIO special counsel, the TIO and the TIO’s secretary. This meeting discussed important issues concerning the conduct of the four arbitrations without the presence of any COT claimant or representative and, because of the secrecy surrounding this meeting, the claimants weren’t even able to comment on the proposals put to the meeting. If Graham Schorer (COT spokesperson) or I had been represented then the resulting alterations to two of the clauses in the arbitration agreement would certainly never have been allowed.
If Graham Schorer and I had known about the alterations discussed at this meeting a month before our lawyers agreed to accept the agreement, we would never have agreed to sign it. The arbitration agreement included a confidentiality clause that covered events that occurred DURING the arbitrations process but did NOT cover events that occurred before the arbitration had commenced. In other words, if either party committed an offence of a criminal nature, this confidentiality clause would effectively stop an investigation, thereby allowing a cover-up. In my case, even though the TIO and the arbitrator were aware Telstra perverted the course of justice during my arbitration, this confidentiality clause has so far stopped any investigation into this unlawful conduct.
Who Paid Grant Campbell?
Absentjustice.com/Open Letter File No/56-A to 56-Dshow Telstra’s Grant Campbell was associated with my FTSP in the very early days. This facsimile cover sheet (Open Letter File No/56-A) from Mr Campbell to Warwick Smith concerning Allan [sic] Smith – Cape Bridgewater Holiday Camp, and the expression of interest by Ferrier Hodgson, discusses my ongoing faxing problems.
When these documents came to light, they confirmed Grant Campbell was officially signing off correspondence on behalf of Warwick Smith, including official FTSP correspondence.
Neither Warwick Smith, nor anyone from the TIO’s office, ever informed me that Grant Campbell was temporarily seconded from Telstra to Warwick Smith’s office, where the TIO gave him the power to scrutinise my claim material. And, without any checks by anyone, including Dr Gordon Hughes (then appointed assessor) or Ferrier Hodgson Corporate Advisory (the resource unit). Like Telstra council and board members Ted Benjamin, Chris Vonwiller and Jim Holmes, Grant Campbell had free range at the TIO office and was allowed to formally classify my ongoing telephone and fax problems as ‘new’ problems and therefore not connected to my FTSP claim, despite Warwick Smith and Mr Campbell being fully aware, at the time, that this was not the case.
Open letter File No 54-A to 54-F and Open Letter File No/4 File No/5 File No/6 File No/7, record my ongoing telephone and faxing problems from at least October 1993. These documents were supplied to Warwick Smith as the official administrator, on 27 January 1994, to forward to Dr Gordon Hughes, Mr Peter Bartlett and Mr John Rundell. An interim claim dated 27 January 1994 is available at Open letter File No/46-A.
I continue to demand answers as to why Dr Hughes and John Rundell never addressed this first part of my FTSP claim and, as of January 2017, I have not received advice as to why it was not discussed in the arbitrator’s written findings. Are we to presume that, like many of my unaddressed claim documents, this information never reached the assessor/arbitrator because Telstra’s Grant Campbell and the arbitration resource unit had first access to which documents would be submitted to the arbitrator (in a secret deal arrangement entered into by Telstra, Warwick Smith and the arbitration resource unit)?
FOI documents were provided to Australian Liberal/National Party executives, including the previous prime minister, Tony Abbott, and the now deputy prime minister, Barnaby Joyce. These documents prove I was not told Mr Campbell was seconded from Telstra during my FTSP: I believed Mr Campbell was a TIO employee. I did not know that, when I presented him with various 008/1800 billing FTSP claim exhibits, proving Telstra had a national network 008/1800 billing problem, I was helping the defence and severely damaging my claim.
These same FOI documents also show that, after Mr Campbell returned to Telstra, he began addressing the same 008/1800 billing problems he previously assessed in connection to my case while wearing his TIO hat, only now he was making those assessments while wearing his Telstra hat in relation to another COT claimant from Brisbane, Queensland.
To have allowed the defendant access to the opposing side’s claim material, before the claimant decided which information to submit to the assessor and/or arbitrator and which to keep back in order to answer the defendant’s defence, was highly undemocratic conduct: how can a Western democracy allow this to happen?
In most Western democracies, if such conduct during a litigation process is brought to the attention of the authorities, then those responsible for that conduct and those who allowed it to flourish, are held accountable for the damage they caused. The TIO’s office and Telstra have never assisted me to resolve this issue, and this confirms what I say on absentjustice.com: there is one law in Australia for the bureaucrats and another for the man on the street. Grant Campbell signed a letter to Telstra, dated 9 February 1994, while wearing his TIO hat and on behalf of Warwick Smith. Regarding my loss of fax capacity, he states:
“I spoke with Alan Smith on 9th instant following on the 8th instant [sic].
“He has agreed that this is a new matter and whilst it may be indicating some ongoing problems, it is not a matter that relates directly to the preparation of his material to be presented to the Assessor.” (See Open Letter File No/56-A to 56-B)
This comment however does not correlate with the many problems I continued to experience and record, throughout my FTSP, nor the 31 January 1994 account for my dedicated fax line, including the following exhibits.
A letter, dated 21 January 1994, that I received from my FTSP accountant, Selwyn Cohen, states:
“I refer to your facsimile of 10.42 a.m. on 17th January 1994. The fax cover sheet refers to 7 pages being sent. Unfortunately, I only received 2 pages.
“Please forward the remaining 5 pages to enable me to begin the required work.”(See Open Letter File No/56-D)
A letter from Stedman Cameron, dated 2 February 1994, states:
“We note that you did not receive two pages at all and only the number 2 from the third page and the signature from the last page of the facsimile sent to you at approximately 2.23 p.m. on the 1st February, 1994.
“It was successfully sent approximately two hours later.” (See Open Letter File No/56-E)
Open Letter File No/56-F is a letter, dated 25 February 1994, from the minister for communications’ office, detailing the ongoing telephone and faxing problems I was experiencing. My interim letter of claim, dated 27 January 1994, addressed to Dr Hughes, Warwick Smith, Peter Bartlett and John Rundell (see Open Letter File No/ 46-A) had a 37-page report attached to it showing massive ongoing faxing problems beginning in January 1993, at the latest.
I gave two pages of data from Telstra’s Call Charge Analysis System (CCAS) Grant Campbell and Warwick Smith. These printouts (see Open Letter File No/56-H) are particularly interesting because a handwritten list on them indicates Telstra secretly monitored and recorded people I spoke to on the phone or faxed in connection to my FTSP.
Not so amazing is the fact that none of the information I document above, concerning loss of faxing capacity, is mentioned anywhere in Dr Hughes’ award or the DMR and Lane reporting, which suggests that Telstra’s Grant Campbell thought it important to misinform all interested parties concerning my settlement/arbitration faults in order to minimise Telstra’s liability.
Open Letter File No/56-C shows my faxing problems were still continuing in October 1993. This also contradicts Mr Campbell’s statement, on 9 February 1994 (see Open Letter File No/56-A to 56-B), that I advised him these faxing faults were new problems.
Open Letter File No/56-G is a Telstra two-page internal memo, dated 3 March 1995, for the attention of D Campbell, T Benjamin, S Black and G Campbell. Ted Benjamin and Steve Black were, in March 1995, Telstra’s arbitration liaison officers to my arbitration and Grant Campbell was well situated in Telstra’s arbitration unit. Doug Campbell was Telstra’s group general manager of operations, possibly the worst of Telstra’s “dirty-tricks departments” (so named in the Senate Hansard of 26 September 1997). All four employees were firmly involved in my arbitration. How is it possible that Warwick Smith allowed Grant Campbell anywhere near my claim documents? My FTSP claim documents that were originally addressed to Dr Hughes, Peter Bartlett, Warwick Smith and John Rundell (see Open letter File No/46-A) have never been returned to me.
Warwick Smith again assists Telstra’s FTSP defence
Not only did Warwick Smith allow Grant Campbell access to my claim material, but he then allowed his own resource unit to also have first access to Telstra arbitration procedural information, in a secret deal concocted with the defendants, which allowed the resource unit to decide what documents THEY believed the arbitrator should see and which should be discarded under the heading A Secret Deal. This is why the other COT cases and I are still fighting for our right to a fair, properly conducted, transparent, arbitration process.
FTSP – Commercial Assessment v FTAP – Arbitration
To present this statutory declaration in some sort of chronology of events we need to begin before April 1994, when the appointed commercial assessordecided, with the first TIO and the defendants (Telstra), to turn the commercial assessment, FTSP, into a highly legalistic arbitration process. Telstra’s lawyers controlled at least 33 of Australia’s largest legal firms and most, if not all, of Australia’s technical resource units (see Senate Hansard for 24 June and 26 September 1997). By using Telstra’s drafted arbitration agreement, faxed to the TIO on 10 January 1994, Telstra had their foot in the door to control the whole arbitration process. Later, Dr Hughes alerted the TIO, in his letter of 12 May 1995 (see Open Letter File No 55-A), that they were duped by Telstra into using an agreement that did not allow enough time for the:
“inevitable delays associated with the production of documents, obtaining further particulars and the preparation of technical reports”.
The only choice these two lawyers should have had was to admit they misled and deceived the four COT cases, the claimant’s lawyers and many of Australia’s government ministers, including the Canberra Parliament House press gallery, into believing the arbitration agreement was totally prepared independently of Telstra, when this was far from the truth, as they both knew. Instead, they decided to conceal, what they had done and by doing so they have stolen 22-years of our lives.
Four Australians were prepared to stand up against the monster Telstra and its CEPU thugs, who were stealing millions upon millions of dollars from the public purse (see absentjustice.com/Introduction).
AUSTEL’s chair Robin Davey (see Open Letter File No/50-A) was clear at point 40 in his letter of 5 October 1993: Telstra’s main lawyers, Freehill Hollingdale & Page, were not to have a continuing role in COT matters due to their previous conduct towards the COT cases. In my case, prior to my FTSP, Telstra refused to investigate my ongoing telephone problems unless I first registered them in writing with these lawyers. I did not received back one single fault complaint document that I provided Freehills, during the period I was forced to register my complaints with them, nor any responses they received from their client Telstra under FOI during my arbitration (see Open Letter File No/50-B and 50/C). Telstra and Freehills were able to conceal, from the arbitration, just how bad my ongoing telephone and faxing problems were.
Anyone who dared challenge Telstra’s ailing copper-wire network and their use of known-faulty telecommunication equipment, in the 1980s, were marked for character assassination: something both Warwick Smith, Dr Hughes and his arbitration project manager, John Rundell, also adopted in 1995 and 1996, in their so-far successful attempt to discredit me and my fellow COT colleagues.
Ambit of the Victorian Commercial Arbitration Act 1984
While the ambit of the Victorian Commercial Arbitration Act 1984issue appears on the Senate Page, it is important to raise it here too, in our Arbitration Page.
24 January 1994: This letter to the arbitrator from the TIO Special Counsel, provides further proof that the first four arbitrations were to be conducted according to the “ambit of the Commercial Arbitration Act 1984”. This particular representative from the TIO Special Counsel was, in fact, also the President of the Institute of Arbitrators Australia when he advised the arbitrator:
“We discussed whether or not the Procedure should come within the ambit of the Victorian Commercial Arbitration Act 1984. We decided that it should.”
On page two, he adds:
“On balance, it was decided that it would be preferable to have the Procedure operating under the ambit of the Commercial Arbitration Act.
You will note that I have amended the Procedure so that it is clear that you are conducting four separate arbitrationsand will hand down four separate awards although you may combine some aspects of the four hearings.” See Arbitrator File No/105)
Please note: the matters discussed on absentjustice.com are said in the public interest and therefore are made in accordance with Victorian Defamation Act 2005 Defamation-division 1 Defamation and the general law http://www.legislation.vic.gov.au/Domino/Web_Notes/LDMS/PubStatbook.nsf/f932b66241ecf1b7ca256e92000e23be